Obama's Immigration Order: The Right Thing in the Wrong Way

The policy will improve life for millions. The way he is enacting it may contribute to great harms.

President Obama's grant of a guarantee against deportation to a large class of unauthorized immigrants is a win-lose. The executive order is a win because its substance improves on a callous policy. As many as 4.3 million humans will now find their lives meaningfully improved with no direct harm done to anyone else. And indirect costs—like inspiring others to make a very dangerous journey north in hopes of benefitting from a similar deal—seem unlikely to outweigh the benefits. (Your assessments may vary.)

The policy is a loss because democracy suffers when a politician says that the law forbids him from doing something, is reelected, and then takes the ostensibly illegal course he'd disavowed. It doesn't help when his logic is, I had to do it, the people's representatives wouldn't. I hope I'm wrong in suspecting that this will radicalize restrictionist groups. It is certainly an advance that is vulnerable to reversal in two years when another president takes office—and may make congressional compromise on immigration harder to achieve, though maybe not. It isn't as if the legislature was showing any urgency in passing an immigration-reform bill, despite the fact that every month of delay caused countless millions needless suffering.

Is the executive order in fact illegal? Ross Douthat best captures my feelings on the subject:

The reality is there is no agreed-upon limit to the scope of prosecutorial discretion in immigration law because no president has attempted anything remotely like what Obama is contemplating. In past cases, presidents used the powers he’s invoking to grant work permits to modest, clearly defined populations facing some obvious impediment (war, persecution, natural disaster) to returning home. None of those moves even approached this plan’s scale, none attempted to transform a major public policy debate, and none were deployed as blackmail against a Congress unwilling to work the president’s will.

And none of them had major applications outside immigration law. No defender of Obama’s proposed move has successfully explained why it wouldn’t be a model for a future president interested in unilateral rewrites of other areas of public policy (the tax code, for instance) where sweeping applications of “discretion” could achieve partisan victories by fiat. No liberal has persuasively explained how, after spending the last Republican administration complaining about presidential “signing statements,” it makes sense for the left to begin applying Cheneyite theories of executive power on domestic policy debates.

For those reasons, I regard this executive order as the latest in a series of expansions of executive power that goes back at least to the Bush administration, a context that cuts two ways for me. On one hand, I find that trend extremely alarming and fear we'll suffer as a result in ways we cannot yet anticipate. Does this portend a future where presidents behave this way on foreign and domestic policy? What laws will President Cruz one day stop enforcing?

On the other hand, I find it hard to believe a high percentage of conservative laments about the dangers of an out-of-control president, because this is far from the most alarming assertion of executive power we've recently seen, even from Obama. Precedents set by this White House make it much easier for a future president to wage war without congressional permission even when an enemy poses no threat to national security (like the regime that he helped to overthrow in Libya).

Obama decided that it was all right for the president to secretly put an American citizen's name on a kill list and to vaporize him with a missile without any due process. He has also presided over secret mass-surveillance on most every American.

Naturally, I fear that future presidents will abuse unilateral war-making, secret killing of Americans without trial, and mass spying more than I worry that they'll grant even broader reprieves to unauthorized immigrants in coming years, because would that really be so terrible? Meanwhile, most congressional Republicans worry more about definitely not deporting millions of people we weren't deporting anyway, and not at all about the war-making and secret-killing precedents.

How, then, am I to signal displeasure with Obama's assertions of power? By supporting the party that wants to add indefinite detention and waterboarding to stuff presidents can do on their own, but subtract granting amnesty to unauthorized immigrants? I suppose the best outcome, by my lights, would be if congressional Republicans reacted to this course by acting to constrain executive power generally. But nothing like a majority of elected Republicans in this or the next Congress are up for that project. Nor are they eager to dispense with temporary freedom from deportation and grant unauthorized immigrants amnesty.

In fact, even Obama claims to be against that. "Mass amnesty would be unfair," he said. Apart from all but the pettiest of criminals, whose deportation I favor, a mass amnesty may actually be the most fair policy, if our concept of fairness extends to the unauthorized immigrants born through no fault of their own in countries vastly poorer than the one where we were born through no doing of our own. There is a limit to my logic. America cannot accommodate every poor person in the world. I couldn't tell you how many immigrants, exactly, we can handle. But I'm certain that we can easily accommodate all the ones who are already here.

And we'd be better off in the end.