So, the dust has started to clear now there’s a couple of recounts and runoffs to be had, and some stray results still to straggle in. But there’s enough on the table for the Democrats to explore, as president Nixon once said, “the full length and breadth of the shaft”. Presumed Senate majority leader Republican Mitch McConnell (he has to be confirmed on the floor) sounded a mildly constructive note, saying “there would be no government shutdown, and no default on the national debt” but that hell, yeah, they were going to undermine Obamacare and much more besides. At that point, beaten down Dems assumed that the worst Obama would emerge — the pre-2012 Obama, desperate to look for a partner for government across the other side of the aisle.

Well they were wrong. Obama came out swinging, giving an hour-long press conference yesterday in which he noted that people had voted and he had “heard them” and that many others — a full two-thirds — hadn’t voted and he had “heard them too”. In other words, he wasn’t going to be stampeded into a mea culpa. Many folks were elected by people, but “I’m the one elected by all the Americans”, he said, thus leaning on domestic power attributed to the president by the constitution — that s/he is not simply a rubber stamp or veto for a parliament, but a holder of separate executive power in his/her own right. To beaten-down supporters, it was good to hear — Obama’s cool put to its best use, a quiet notification that he wasn’t going to be pushed around. The guy who spent two years trying to find partners for bipartisan action in Congress, and other such Kumbayah stuff, appears to have fully turned the guns around. Late, but not too late.

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As a measure of this, Obama announced that he may well move forward with one of the most controversial of his proposed executive actions — to grant amnesty from prosecution to millions of the US’s 12 million or more illegal immigrants. Amnesty would allow them to pay a fine, enrol in society, and eventually start on a “path to citizenship”. The proposed move has jammed the GOP up six ways from Christmas for a couple of years now. Failure to acknowledge that many illegal immigrants are a vital part of the US’s low-wage economy and the supply of low-price services, and to regularise their situation, has left the Republicans with plummeting support among Hispanics, who once supported them 70-30 on conservative cultural grounds. But the Tea Party, overwhelmingly north-European-American (can we have a name for this? Can we use Aryan again?) have screamed blue murder over anything less than a sea-to-sea border fence, before there’s any talk of amnesty. Obama gets it from both sides on this issue, since the sheer number of people crossing the US-Mexico border has caused more deportations on his watch than under any president. He’s the deportation president, he’s the amnesty president.

The Republican leadership was eager to work with Obama and make some sort of “path to citizenship”, out of electoral self-interest  — but they would have relied on Democrat votes to do it, and there’s a thing called the Hastert Rule, which both party leaders have committed to, that they won’t lead out new legislation in the House, unless it has the support of a majority of the majority party. In the Republican party it didn’t, and so Obama began making noises about doing it using executive authority, to change regulations, and implement and create de facto amnesty. The move was meant to go ahead before the midterms — its delay appears to have been at the desperate plea of Democrats hanging on in old-white-people districts and states. Since they vote hugely in midterms and no one else does, the idea was to curl up in a ball and hope for the best. Would Hispanics have come out in larger numbers had he signed the orders before the election? That seems unlikely on past midterm performance, but they sure as hell stayed home in the absence of any action.

“The most boring and vexing election of recent times may be the prelude to an interesting two years.”

Obama hasn’t backed down from the commitment — if Congress won’t work with him for Amnesty, he says, then executive order was still on the table “within my lawful authority”. It’s a phrase he used a few times, kicking back at those who had branded him as acting outside the law.

The prospect that Obama might do that has sent the Right into head-spinning conniptions and immediate confusion. Everyone was so confident that they were dealing with the old Obama that election night broadcasts were claiming that executive amnesty was now “dead in the water”. The announcement that it is now back on has created a furious argument as to whether they should go toe-to-toe and oppose Obama, or whether that would finish them with Hispanics for good and all — a disaster, because Hispanics do turn out in presidential elections, including states like Florida, Colorado and Nevada, which the GOP need to be in play to have a chance at victory. They could lose the election on this matter alone.

But they could also double down. Congress could pass a bill that attempted to explicitly rule out executive amnesty — such amnesty would be done by widening the provisions of a law that bars deportation of unaccompanied children, to include all children and their parents, by definitional change — but the question would be whether any law can limit the executive scope encoded within the act. Whether executive amnesty is itself constitutional is also open to question, and comes down to the inherently nebulous nature of executive power. The stomping and shouting about executive tyranny etc is pure political theatre — the Supreme Court is there for judicial review of executive decisions. Indeed, a recent ruling that Obama had acted unconstitutionally in appointing people to boards (the National Labor Relations Board in this case) without Senate approval was carried 9-0.

Yet that was rare win. For the most part, Obama hasn’t been hemmed in by the court, which is one reason the Republicans are so unwilling to take his actions there. One alternative open to them is impeachment, which has started to be talked up again in the media of late. That’s a measure of the everyday political illiteracy of much of the mainstream media, since the Republicans could have impeached Obama — i.e. committed him to trial in the Senate via a vote in the House of Reps — at anytime since 2010. What they couldn’t do, then or now, is get the two-thirds of votes — 67 senators — required to win the trial in the Senate. But the Tea Party in both Houses would want them to try, as a measure of commitment to their belief that a stand must be taken against tyranny, etc.

Cooler heads will prevail but the process will once again put House Speaker John Boehner, and now Senate majority leader Mitch McConnell in the role of resisting parts of their own party — which in turn will be using the struggle as a proxy war for the 2016 nomination process. Most level-headed conservatives — and Charles Krauthammer — believe that a failed impeachment process would be a political disaster in the order of the recent government shutdown, and communicate to many that the Republicans still weren’t willing to actually govern, rather than politick. To which the Tea Party etc might reply, looking at recent results, “yeah some disaster that shutdown, look at the midterms”.

Which suggests we are not in for any traditional lame-duck session, but a fight all the way to the end of the term. That will be done with an eye to not undermining Hillary in her bid, one would imagine — but there’s no love lost, and Obama may well feel that he is now liberated from any and all obligation to imminent contenders. The most boring and vexing election of recent times may be the prelude to an interesting two years.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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