"Defining constitutional deviancy down."

From the new David Brooks column titled "Obama in Winter":

Usually presidents at the end of their terms get less partisan, not more... Usually presidents with a new Congressional majority try to figure out if there is anything that the two branches can do together... But the White House has not privately engaged with Congress on the legislative areas where there could be agreement. Instead, the president has been superaggressive on the one topic sure to blow everything up: the executive order to rewrite the nation’s immigration laws.... Instead of a nation of laws, we could slowly devolve into a nation of diktats, with each president relying on and revoking different measures on the basis of unilateral power — creating unstable swings from one presidency to the next. If President Obama enacts this order on the transparently flimsy basis of 'prosecutorial discretion,' he’s inviting future presidents to use similarly flimsy criteria. Talk about defining constitutional deviancy down.

"Defining deviancy down" is a famous alliterative phrase — less alliterative with Brooks's extra word "constitutional" thrown in. It was coined by Daniel Patrick Moynihan in a 1993 article titled "Defining deviancy down," which, as Mickey Kaus once put it, "blames the left for treating mental illness and single motherhood as acceptable 'life styles.'" The deviancy in question was the private citizen's deviancy from social norms. It's a catchy way to decry the lowering of standards (similar to Bush's "soft bigotry of low expectations").

It's interesting to transfer "defining deviancy down" to the context of the behavior of Presidents within a constitutional system, and in fact the behavior of Presidents does influence the way courts later interpret the power of the President. As Justice Felix Frankfurter wrote long ago in a very significant case:

The Constitution is a framework for government. Therefore, the way the framework has consistently operated fairly establishes that it has operated according to its true nature. Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them. In short, a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on "executive Power" vested in the President by § 1 of Art. II.

That proposition was warmly embraced in Justice Breyer's opinion for a majority of the Supreme Court in last term's case about the President's power to make recess appointments:

[T]e longstanding “practice of the government”...  can inform our determination of “what the law is”...

That principle is neither new nor controversial. As James Madison wrote, it “was foreseen at the birth of the Constitution, that difficulties and differences of opinion might occasionally arise in expounding terms & phrases necessarily used in such a charter . . . and that it might require a regular course of practice to liquidate & settle the meaning of some of them.” Letter to Spencer Roane (Sept. 2, 1819), in 8 Writings of James Madison 450 (G. Hunt ed. 1908). And our cases... show that this Court has treated practice as an important interpretive factor even when the nature or longevity of that practice is subject to dispute, and even when that practice began after the founding era. See Mistretta, supra, 400–401 (“While these [practices] spawned spirited discussion and frequent criticism, . . . ‘traditional ways of conducting government . . . give meaning’ to the Constitution” (quoting Youngstown, supra, at 610) (Frankfurter, J., concurring)); Regan, supra, at 684 (“[E]ven if the pre-1952 [practice] should be disregarded, congressional acquiescence in [a practice] since that time supports the President’s power to act here”); The Pocket Veto Case, supra, at 689–690 (postfounding practice is entitled to “great weight”); Grossman, supra, at 118–119 (postfounding practice “strongly sustains” a “construction” of the Constitution).

So Presidents really can define constitutional deviancy down. They can acquire power by claiming and using it, especially if Congress doesn't put up much of a fight.