Six Ways Not to Think About Obama's Immigration Order

We can't call it a constitutional crisis; but we shouldn't consider it business as usual, either.

Larry Downing/Reuters

Senator Tom Coburn warns that President Barack Obama’s announcement of a new “deferred action” program for undocumented aliens may spark “instances of anarchy.” Senator Ted Cruz compares Obama to the Roman conspirator Catiline, quoting Cicero: “When is there to be an end of that unbridled audacity of yours, swaggering about as it does now?” Democratic lawmakers disagree—Senator Harry Reid called it “exactly right” and Senator Barbara Boxer called it “bold and constitutional action to bring people out of the shadows.”

Everyone agrees that the new policy is what Joe Biden might (while the mikes are live) call a big deal.  But they are not so clear on why.

Maybe we can figure that out by eliminating reactions to the announcement that are clearly wrong.  Here are six ways you should not analyze what happened Thursday night.

1. As a constitutional crisis

On April 8, 1952, President Harry Truman sent federal agents into every steel mill in the United States to operate the mills under federal authority. Truman said that he had “inherent authority” as president to seize the mills in order to prevent a strike that would interrupt the flow of arms to the war in Korea.

Now there is a constitutional crisis for you.

Thursday night, President Barack Obama announced new policies at the Department of Homeland Security that will permit some undocumented aliens—perhaps as many as 4 million—to apply for temporary “deferred action” that will spare them deportation for the next three years.

Crisis? Yes—a political crisis, and perhaps a legal one. But not a constitutional overreach. Obama, unlike Truman (or, for that matter, George W. Bush) has not asserted any inherent power to do anything. He has, instead, issued an interpretation of the statutes passed by Congress, concluding that he has been granted statutory authority to set up something like this program.

Obama’s action does implicate his duty, under Article II, Section 3, of the Constitution to “take care that the laws be faithfully executed.” But he has not asserted that the immigration statutes do not bind him; he has asserted that his actions “faithfully execute” them. That is an assertion of statutory authority, to be resolved by statutory arguments, and perhaps by new legislation. If we conclude later that Obama’s interpretation was wrong, that does not make it a violation of his oath.

2. As “legalizing” unlawful immigrants

Obama has not claimed to be bestowing “legal status” on anyone. The “deferred action” policy grants certain undocumented workers the possibility of working legally. There’s no path to citizenship, nor is it a permanent status. Those are Congress’s to bestow or withhold. Further, it does not give any alien a “right” to stay—each individual application for “deferred action” has to be decided by Citizenship and Immigration Services officers, who can reject it for if doing so would serve “an important federal interest.”

3. As unprecedented

Since the Alien Acts of 1798, Congress has made a habit of giving the president broad discretion to decide whether to deport certain aliens or allow them to remain. As recently as 1990, President George H.W. Bush granted something like “deferred action” and work authorization to 1.5 million undocumented people—spouses and children of other aliens who’d been legalized by the Immigration Reform and Control Act of 1986. Four million is more than 1.5 million; but the percentages of the undocumented population affected are roughly the same.

4. As a violation of the law because of previous statements by the president

During his six years in office, Obama has occasionally mused aloud that he could not use his authority to set aside the immigration statutes, granting legal status to the undocumented or stopping deportation. Obama now explains that he was responding to demands that he enact an entire immigration-reform package—including a path to citizenship—by executive order; he’s not doing that, he says, just taking actions he is authorized to take by the statute.

Let’s assume that he has changed his position, though. The fact that a president has said one thing does not make it illegal for that president to change his mind. Obama’s statements don’t affect the underlying legal issue: Either the “deferred action” program is a fair interpretation of the statute or it isn’t.

5. Through a partisan lens

Some commentators and politicians worry aloud what will happen in future if a Republican president uses executive power to alter enforcement of Democratic priorities. That’s absolutely the wrong way to assess a constitutional and legal question. Neither the Constitution nor the U.S. Code takes any account of parties or partisan advantage. And speaking for myself, if we come to a future where a Republican president confronts a national emergency, and a Democratic Congress refuses—purely for partisan advantage—to enact a legislative response, I hope that Republican president will have the gumption to act. Whether he or she does the right thing is a different question. It should be argued on policy, not party.

6. As business as usual

Since 2009, the Republican Party has consistently refused to take part in governing the nation. The predictable result is increased assertions of power by the president. Somebody has to govern. That’s not new. It’s the story of how the presidency has grown.

It’s not a good development, though, whether you like Obama or hate him. Eventually the presidency itself becomes a danger to self-government, and in the era of electronic surveillance and covert military action, we may be near that point. We have to find our way out of this impasse.

“Instead of working together to fix our broken immigration system, the president says he’s acting on his own,” Boehner said before Obama’s speech. “That’s just not how our democracy works.” He’s right. But our democracy doesn’t work at all right now, and Boehner bears a huge share of the responsibility for that. If Congress does act on immigration, whatever it decides—good or bad—will be the law, and Obama’s executive program will have no more force. It is Boehner’s House that has prevented action. The way out of this crisis is for it, finally, to do its job.