Vote for Gridlock?

Mickey Kaus has endorsed Obama, but in a characteristically counter-intuitive way, part of his rationale being that Obama would be less likely to succeed in getting an illegal-alien amnesty through Congress. His closing graf:

The ideal kausfiles election outcome, when it comes to achieving that end ["preserve salutary gridlock on Obamacare and immigration" -- MK], seems ... well, you tell me: We'd need a) Republicans to retain control of the House and at least their current filibuster veto in the Senate while b) Obama loses every state in which Romney has attacked him on his welfare backsliding (Ohio, Colorado) while c) Latinos provide a winning margin nowhere; yet d) Obama somehow wins. Seems unlikely! The actual returns will be less than "optimal," as Jon Stewart might say. But we can come close.

Specifically on amnesty, Mickey’s both right and wrong. It's almost certainly true that Romney would be more likely to get some kind of immigration legislation passed, though I think it would be something more limited than he fears, and might even turn out okay.

But Mickey is missing the elephant in the room: Obama no longer needs congressional assent to make immigration policy. First, through a series of memos, he simply exempted from immigration enforcement virtually all illegal aliens, except those with non-immigration-related felony convictions. Then, starting in August, Obama unilaterally launched an ostensibly temporary amnesty, complete with work cards and Social Security numbers, for up to 2 million illegal aliens who came here before age 16. Everyone understands the legal status awarded to these illegal immigrants will never be rescinded.

In other words, the reduced likelihood of Congress passing a formal amnesty under a President Obama than a President Romney is not really relevant because Congress is arguably now the least important branch of government when it comes to making law. Important laws are passed either by five justices of the Supreme Court or now by the Caesar president alone, not just on immigration but on a whole range of issues. Congress has acceded to this state of affairs, and if the voters reelect the president, one could plausibly argue that the Constitution's requirement that the president "take care that the laws be faithfully executed" has been rendered a dead letter. We would have a new constitutional practice, perhaps even a new "regime" in the political-science sense, wherein the princeps determines which of Congress's "laws" to enforce and even to promulgate new ones contrary to Congress's wishes, rendering the Congress more an advisory body than a legislative one.