President Obama’s announcement
last night of new executive action that would legalize an estimated
4-5 million illegal immigrants has enraged the conservative
commentariat as much as it has placated the liberal punditocracy.
Libertarians, meanwhile, had a wider range of reactions: Many are
pleased with the actual policy but concerned that it came about
through even more executive overreach.
Making the libertarian case that Obama’s decision falls well
within established legal precedent, here is
Ilya Somin (a George Mason University law professor, Cato
Institute scholar, and Volokh Conspiracy blogger):
Article II of the Constitution states that the president must
“take Care that the Laws be faithfully executed.” But that does not
mean that the president has an absolute duty to prosecute all
violations of federal law, or that he cannot choose which ones to
pursue based on policy considerations. If it did, virtually every
president in the last century or more would be in violation.
…
To the extent that large-scale use of prosecutorial discretion
is ever appropriate, it is surely so in the case of helping people
whose only violation of the law is fleeing poverty and oppression
under terrible Third World governments. Few
other offenders have such a compelling moral justification for
breaking the law. I strongly support the legalization of
marijuana and the abolition of the War on Drugs more generally. But
illegal immigrants violating the law to escape Third World
conditions are considerably more deserving of our compassion than
college students violating it to experiment with marijuana or other
illegal drugs. If exemption from prosecution is acceptable for the
latter, it should be permitted for the former too.
Somin argues that all presidents must set uneven enforcement
priorities—it’s simply impossible to do other wise. The president’s
decision to focus on certain categories of lawbreakers instead of
others can hardly be deemed illegal. Plenty of laws considered
silly by the authorities go unenforced. That may be a problem in
and of itself—and it’s made worse by the sheer volume of federal
laws—but now is a strange time for libertarians to make that
argument, given that the outcome of not enforcing restrictive
immigration laws is liberty-maximizing.
Eric Posner, a professor of law at the University of Chicago,
wrote that immigration enforcement is unlike other aspects
of the law and is uniquely the purview of the executive branch:
Thus, the president’s discretion to enforce the immigration laws
has always been the cornerstone of a de facto guest-worker (or, if
you want, caste) system from which most Americans have greatly
benefited. That’s why Republicans’ claim that the president is
shredding the Constitution sounds so odd to people knowledgeable
about immigration law. He’s just doing what countless Congresses
have wanted him to do, and have effectively forced him to do, so
that Congress itself could avoid charges that it has created a
two-tier system of citizenship where the bottom tier is allowed to
stay in this country and work, but is not allowed to vote, to
benefit from welfare programs, to travel freely, or to enjoy the
full protection of workplace laws. Of course, you might say that
the whole illegal immigration system, with its two-tier system of
rights, violates the Constitution or at least constitutional
values, but the fault for that lies with Congress, not with the
president.
On the right, conservatives accused the president of unilateral
tyranny. National Review‘s Rich Lowry
set the tone:
Altogether it would have been a wholly adequate pitch for
Congress to pass comprehensive immigration reform, in the normal
give-and-take over proposed legislation. But he’s out of that
business. Now he proposes and disposes, and the only alternative is
assent.
This charge was echoed and
amplified by a host of Republican politicians. Sen. Ted Cruz
called Obama “a monarch.” Rep. Michele Bachmann called him “a
dictator.” Speaker John Boehner’s office referred to him as
“Emperor Obama.”
Even Sen. Rand Paul, a libertarian-leaner seen as more
sympathetic to immigration reform than many other Republicans,
accused the president of “lawlessness” and attempting to issue
“executive amnesty.” He wrote on
Facebook:
President Obama is not above the law and has no right to issue
Executive Amnesty. His actions blatantly ignore the Separations of
Powers and the principles our country was founded on. The President
has said 22 times previously that he does not have the power
to legislate on immigration.
I believe that immigration reform is needed, however for true
and effective reform, we must first secure the border. I will not
sit idly by and let the President bypass Congress and our
Constitution.
The Washington Post‘s Jennifer Rubin
criticized the notion that other presidents have taken
similar paths on immigration reform:
His assertion that other presidents have done the same is
patently false, something the former constitutional law instructor
should know. No,
in other cases the presidents acted to interpret existing
law as Congress authorized them to do. And the huge number
of the persons affected by Obama’s actions in and of itself sets a
new and disturbing precedent. In short, prior presidents were
not operating in direct contravention of law that Congress refused
to change.
Just about the only hint of praise on the right came from the
editors of the conservative New
York Sun in a terrific editorial extolling the
virtues of sane immigration policies:
President Obama’s immigration speech last night could yet go
down as his finest hour. No doubt there are those who will retort
that this isn’t saying a whole lot, given the disappointments of
his presidency. But we are among those on the right who reckon that
if we want — as we do — the free movement of trade and capital we
also need the free movement of labor. Nor does the free movement of
people burden our economy. The virtue of our system of democratic
capitalism is that incents individuals to produce more than they
consume, so that the more is the merrier.
Moving leftward, Andrew Sullivan expressed similar
sentiments:
The paradox of living somewhere and building a life and knowing
that it can all be suddenly swept away; the thought of being
separated from those you love – for ever; the stresses within
families and marriages that such a shadowy existence can create. We
need a full-throated defense of immigration in these cramped and
narrow times, and the president was more than eloquent on that
tonight – and made his case with a calm assurance and intensity.
I’m gladdened by it – and I can only begin to appreciate how his
words will have felt to millions of others.
The Atlantic‘s Peter Beinart wrote that the president’s
announcement was all about living up to his progressive activist
roots:
For progressives, this was always the real promise of Barack
Obama. It was the promise that a black man with a Muslim name who
had worked in Chicago’s ghettos—a man who had tasted what it means
to a stranger in America—would bring that memory with him when he
entered the White House. It’s a promise he fulfilled on Thursday
night.
Former White House Press Secretary Jay Carney was
willing to admit that the president had flip-flopped on the
legality of such action, at the very least:
“Well, here’s what I say,” said Carney. “I think if he could
have those words back, especially the first clip where he
specifically talked about suspending deportations–that is
literally what he is doing today. In later instances including when
I was there he would speak carefully about what he could not do as
president. He can’t change the law. He can’t provide a path to
citizenship.”
Important questions
remain about what the actual impact of this policy will be.
Does Obama’s sucessor now have the express power to roll back this
exact enforcement decision? If he does, many immigrants might
wisely decide to pass on Obama’s call to become legal citizens.
Better than that register with the government and face deportation
two years from now under a President Cruz or Perry.
At Reason, we love immigration but hate executive
overreach, so things like this will always be something of a mixed
bag. Peter Suderman thought the plan was “legal
but unprecedented.” Matt Welch was
critical of Obama’s definition of the word amnesty and
wrote: “People really resent line-jumpers when
the queue stretches back as
far as the eye can see; speed up that process and our national
debate would look a lot more reasoned and thoughtful.”
Since I despise the enforcement of expansive, confusing, and
cruel laws, I personally count this as one of the president’s more
gratifying decisions.
What say you?