In
a
primetime announcement this evening, President Obama will
explains and defend the details of a sweeping executive action
designed to keep roughly 4 million unauthorized immigrants from
deportation and provide them with legal status to work. Some of the
particulars remain unclear, but the basic outlines of the plan have
been known for months: Obama will use enforcement discretion to
redirect law enforcement, prioritizing deportation of unauthorized
immigrants who have additional criminal records. You can read the
White House’s talking points
here. Republicans have called the move
unprecedented and illegal, while the administration,
which seems to be prodding Republicans with the move, has argued
that it’s well within political norms.
As a supporter of expanded immigration and also someone who
worries about executive overreach, I think there are partial truths
in the arguments made by both sides. And while it seems to me that
there are some policy advantages in the maneuver, there may also be
longer-term political and practical disadvantages to consider as
well.
Obama’s move would probably be legal. For the
last several months, conservatives and Republicans have issued
increasingly apocalyptic denouncements of the Obama’s proposed
action, describing it as a massive legal overreach by the
executive. The most compelling comments to this effect, however,
came not from the right but from Obama himself, who has repeatedly
insisted, over the last several years, that the sort of
enforcement-related order he is expected to announce tonight would
be beyond his authority. The White House is now suggesting that
Obama has not changed his position, just his emphasis, but as
The Wahington Post’s Glenn Kessler lays out in great
detail, the record is pretty clear: Obama said on multiple
occasions that the president did not have the power to unilaterally
legalize entire populations of immigrants who are not at risk due
to unusual circumstances.
But if the last few years have proven anything it’s that the law
isn’t necessarily what Obama says it is, and as
Reason’s Shikha Dalmia and Case Western Reserve University
Law Professor Jonathan Adler have noted, the president has a
great deal of authority to set enforcement priorities and exercise
discretion when it comes to immigration law. Even some of the
loudest critics of Obama’s action have come around to the idea
that, at least technically, it would not exceed the president’s
discretionary power, even if it would constitute
an unusual and strained use of it.
It would also be unprecedented. The
administration and some of its supporters are arguing
that various presidents, including Republicans, have done the same
sort of thing before, limiting deportment through executive order,
and that makes this well within political norms. This argument
leaves out crucial details about congressional involvement and
support for those previous presidential orders.
In 1987, under President Ronald, the immigration commissioner
announced that children of parents who had been granted amnesty
under a 1986 immigration law would be granted protection from
deportation. A few years later, the elder President Bush granted
protection to entire families, a move that followed action in the
Senate, and, the following year, was passed by the entire
Congress.
Supporters of the president
note specifically that Bush, Sr.’s move offered
protection to about 40 percent of the nation’s undocumented
immigrants, roughly the same percentage as Obama’s move is expected
to legalize. But in raw numbers, Obama’s move is
expected to have a much bigger impact, granting legal status to
about 4 million immigrants.
And politically, the actions by Bush, Sr. and Reagan just
aren’t comparable, because both came in the context of clear
congressional support for action on immigration. Reagan’s followed
a large-scale amnesty law, and Bush’s followed Senate action that
would soon become passed by the full Congress.
It would represent a further expansion of executive
power, and norms around using it. Just because an
executive action is technically legal does not mean that it falls
within legal norms, and executive power can be expanded not only
through explicit assertions of previously off-limits authority, but
by making use of powers that existed but were never used, or never
used to such an extent. This strikes me as a case of the latter,
especially given the president’s multitude of statements indicating
that the power to legalize so many immigrants is beyond his office,
and the stated reasoning for his change of heart: that Congress has
not acted. When Congress declines to pass a law that the president
would like to see passed, that does not give him an excuse to act.
As President Obama himself
declared in 2011, his job is to “enforce and implement” the
laws that Congress makes, not to use his authority to circumvent
those laws when he sees fit. Anyone who worries about executive
overreach, even those supportive of expanded immigration, ought to
be wary of the precedent this move, and the thin line of reasoning
behind it, could set.
On a strictly policy basis, Obama’s executive action
might be preferable to a big reform bill. If you favor
making immigration easier and more straightforward, and think that
draconian enforcement efforts are both wasteful and
counterproductive, then there are real upsides to executive action
when compared to a big congressional overhaul. A major reform bill
would massively increase funding for border patrols, despite years
of increased funding for border security and
little to show for it and the fact that close to half of
illegal immigrants came here legally and then overstayed their
visas. A comprehensive immigration reform plan would almost
certainly include some sort of E-Verify system, an incredibly
invasive form of workplace nannying which would create huge hassles
for workers and employers, as well as
large numbers of false positives—making hiring, and finding
employment, an even harder process than it already is.
But unilateral executive action could poison support for
broader, more stable reform. There’s no question that the
immediate political consequence would be to further outrage
Republicans, and turn a party that has long had a mix of views
about the virtues of expanding immigration into one dominated by
opposition. In fact, this seems to be part of what the
administration wants—to provoke Republicans into a frothing rage,
in hopes that they will do something politically stupid as a
result. (They might oblige.)
But the backlash might not just be the immediate consequence,
and it might not just be limited to the congressional GOP and its
core supporters; unilateral action might result in a deepened
long-term opposition to greater immigration as well.
One only need to look at the political dynamic in the years
since the passage of Obamacare, another ambitious policy passed
with no opposition party support and a wary public. Democrats hoped
it would provide a path to political victory, but the actual result
was a deep and enduring public opposition that has cost Democrats
in multiple elections.
Similar to Obamacare, about 48 percent of the public
disapproves of Obama’s proposed action, while just 38 percent
say they support the move. And similar to Obamacare, the
president’s actions are making some Democrats nervous too. And just
as before, supporters are arguing that opposition will
blow over quickly.
I wouldn’t bet on it. Unprecedented, large-scale, unilateral
policy changes are nearly certain to produce a backlash—against the
president, against his party, and against the ideas at the heart of
the policy change itself.
To me, this is the most significant risk of Obama’s plan—that it
will create a backlash, not only amongst congressional Republicans,
but across the public at large, a backlash that makes it more
difficult to achieve a stable, legal, and politically viable system
of expanded and simplified immigration, one that is not dependent
on a sympathetic executive or enforcement discretion, but that is
codified in law and agreed upon by enough of the country’s
residents and legislators. This is not to simply condemn Obama’s
plan, but instead to warn enthusiastic supporters that the choice
to act at this time, in this way, without legislative backing or
public support, might be satisfying in the moment, but also stands
a real chance of poisoning opportunities for a better, more lasting
solution at some point in the future. Consensus is hard, and
sometimes it seems impossible, but in politics, it’s also
important.