By passing legislation, the House and Senate could rein in executive excesses and perhaps prevent restrictionists from becoming radicalized.
During the last wave of hysteria about illegal immigration, I covered the subject for the Los Angeles Newspaper Group, and tried to interview scores of Californians on all sides of the issue. That's when I first met Jim Gilchrist, who founded a group that sent volunteers down to the Mexican border to assist the Border Patrol. They'd drive around with flashlights and night-vision goggles, search for groups of illegal immigrants, and alert the border patrol when they spotted anyone. There were several organizations engaged in similar work, some of them populated by well-meaning advocates of law-and-order, others by virulent racists (as Gilchrist told me in a recent interview). They had one thing in common. They'd been radicalized by the idea that they were on the right side of the law in the immigration debate, and had public opinion on their side too, but were losing on the issue because America's political elites refused to enforce duly enacted laws.
Has President Obama overstepped his authority, as his critics suggest? As best I can tell it's a judgment call. In the judgment of Senator Obama, President Obama seems to have acted improperly:
This sort of reversal, in keeping with the many other instances in which President Obama has acted contrary to previously held positions on the rule of law, reflects poorly on him. At the same time, my mind is boggled by critics like John Yoo, who believes Obama is empowered to spy on anyone he likes, add anyone on earth to a kill list, or crush the testicles of a child to better interrogate his father ... but insists that a temporary reprieve for a small class of illegal immigrants is an "unprecedented stretching of the Constitution and the rule of law." James Joyner, who boggles my mind only in his consistent reasonableness, is a bit more restrained in his criticism:
The key issue here is one of the Constitutional balance of power.
Presidents, of course, push the envelope all the time. Typically,
though, it's done in the arena of national security policy, where the
Constitution creates "an invitation to struggle" and where the stakes of
dawdling can be quite high. In the matter of border policy, however,
there's simply no question where the power lies and no exigent
circumstances to justify flouting the law.
In fact, President Obama has "pushed the envelope" even on national-security matters wherein there was no imperative to act quickly and congressional prerogative was clear, so I don't buy the "invitation to struggle" distinction.
Mr Obama's move is surely motivated in part by the political need to shore up support among Hispanic voters miffed by the administration's record-setting deportation numbers. While Mr Obama's aggressiveness about deportation may lead some of us to look sceptically upon the DHS's new stop-gap, the administration's history of zealous enforcement seems to me to work in its favour in this dispute, lending considerable credibility to its claim that the new mini-DREAM scheme is consistent with precedent and not part of a larger pattern of selective disregard for America's immigration laws.
Is the discretion, both de facto and de jure, of the vast executive-branch bureaucracy inconsistent with the rule of law? It sure is. The executive branch has usurped much of the legislative branch's law-making powers, in flagrant violation of the framers' intended separation of powers. Something ought to be done about that. But what does it say about us if the fact of illegitimately expansive executive discretion is suddenly of especially great concern, now that it has been exercised in a way that will protect the prospects of hundreds of thousands of vulnerable and innocent young people? Heaven forbid a politically opportunistic abuse of executive power ever help someone!
I'd only add what the "something" is that ought to be done: on immigration policy, on national security policy, and on matters besides, Congress ought to rein in the executive by acting, rather than effectively granting him extra-constitutional powers because it is convenient for them politically.
Obama's executive order applies to illegal immigrants who:
Came to the United States under the age of 16.
continuously resided in the United States for at least five years
preceding the date of the memorandum and are present in the United
States on the date of the memorandum.
Are currently in school,
have graduated from high school, have obtained a general education
development certificate, or are an honorably discharged veteran of the
Coast Guard or Armed Forces of the United States.
Have not been
convicted of a felony offence, a significant misdemeanor offense,
multiple misdemeanor offenses, or otherwise poses a threat to national
security or public safety.
Are not above the age of 30.
I urge Congress to make all but the last bullet point into law -- why should we kick people out who were brought here as children, never committed any crimes, have a high school diploma or a stint in the Armed Forces, but have reached the age of 31 or 41 or 51? Marco Rubio, who was poised to bring his own version of the DREAM Act to the Senate, seems to think Obama's move has hurt its prospects for passage, though he doesn't persuasively explain why that is so. If Congress feels slighted by his arguably excessive use of executive power, all the more reason for them to act. Whatever legislation ultimately passed would have the salutary effect of checking the potential radicalization of anti-immigration forces who once again feel cheated by the process.