Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Sunday, November 23, 2014

A short response to Greg Sisk regarding the President's speech and order

Like Greg, I think that a Catholic must be a Catholic before he or she is a partisan and that it is entirely appropriate for leaders to invoke Biblical themes and words in public-policy speeches (although there seems to me to be a clear and tiresome double-standard used by most commentators with respect to such invocations).  And, for what it's worth, I am inclined, at present, to think that the substance of the order is good policy.  We do need, and have needed for a while (as both President Bush and Sen. McCain believed), "comprehensive" and just immigration reform.  

I am not sure I'm on the same page, though, with respect to what I take to be Greg's suggestion that we can characterize the speech as "masterful" or make confident predictions about the President's political goodwill without first coming to some conclusions about the "legality of his executive order."  A well-delivered speech with inspiring content is, it seems to me, praise-worthy if it is delivered in the context of an act that the speech's deliverer believes, in good faith, to be lawful.  But, if delivered to defend an action that the deliverer believes or should know is not legally authorized, then it seems to me that even a speech that is excellent in terms of craft is not praise-worthy.    

Respect for the rule of law -- which, in our context, means respect for the structural features and limits in our Constitution and for the President's obligation, even if he or she is frustrated by Congress's failure to enact the legislation he or she would like to see enacted, to faithfully execute the laws Congress has made -- is, it seems to me, as "Catholic" a principle as is welcoming solidarity with the immigrant and the stranger.  (And again, to be clear, I believe that our immigration policies should be in keeping with this welcoming solidarity.)  

All that said, I do not yet have a firm view on the issue of the order's legality, but I do have serious concerns and questions.  And, I believe that even those of us who approve of the substance of the order should care, a lot, about whether the order really is within the President's constitutional authority.  We should be troubled -- conservatives and liberals, Catholics who embrace the Church's social teachings those of us who support immigration reform, all of us -- by what seems to me to be the widespread attitude that the "power" question does not really matter, as long as we like the policy, and that Congress's failure (or, shouldn't we say, decision not) to act somehow creates power in the Executive.      


Garnett, Rick | Permalink