Blog No. 52 Immigration: The Scrap Between President Obama and the Republicans and a Calmer View

A starting place for discussing the current furor over President Obama’s actions on immigration is to understand that the President and many Republicans have, each for their own political purposes, exaggerated the impact of those actions. Speaking on Fox News Sunday on November 16, in anticipation of the President’s announcement, George Will wisely observed that: “It’s going to shield from deportation millions of people who actually face no realistic prospect of deportation. He’s going to give work permits to millions of people who are already working.”

Will went on to describe the proposed policy as one about which intelligent people could agree or disagree. He focused his criticism on the process, which he described as “execrable” and a violation of the “etiquette of democracy.” In a somewhat similar vein, we had observed in Blog No. 50 that:

We sympathize with the President’s goals in this area and understand his impatience, but we believe that creating protections for illegal immigrants that the law does not authorize, and that Congress has thus far declined to provide, would be a serious mistake. Although we support comprehensive immigration reform generally, and in particular the bill passed by the Senate, we think that acting outside the law and in defiance of Congress would be a major setback to reaching agreement on immigration, and most likely, a range of other issues.

Nothing in the President’s actions, or the reaction to them, has changed our mind.

As Will had anticipated, it appears likely that the impact of the actions may be more symbolic than substantive. And in attacking the President’s actions, Republican criticism has been directed far more on the perceived abuse of executive power rather than the merits of the actions themselves. The heart of the President’s actions, deferring prosecution for parents of children who are U.S. citizens, and allowing them to obtain work permits, is a rather narrow step. While it is said that the action might affect up to 5 million people, the vast majority could not and would not have been deported in any case. On balance it seems reasonable as an interim step while the Administration and Congress attempt to reach a solution. It would not, of course, satisfy the nativist wing of the Republican Party (exemplified by Reps. Michele Bachmann and Steve King for whom anything short of outright hostility to immigrants is likely to be unacceptable).

But if it was a reasonable policy, was it legal? Arguably that may also be a question about which intelligent people may agree or disagree. The precedents found in actions by previous Presidents are perhaps not as compelling as the Democrats contend or as irrelevant as the Republicans claim. In this case, the Administration took the unusual step of releasing a 33-page Memorandum by the Justice Department’s Office of Legal Counsel (OLC) concluding that the actions proposed by the President were a lawful exercise of discretion. Consistent with the professional respect that the OLC enjoys, the Memorandum was carefully and thoroughly drafted. The OLC acknowledged that the proposed “Deferred Action” for several million people differed from the traditional exercise of “prosecutorial discretion” on an individual basis and was substantially larger than prior examples of deferred action. The OLC, however, relied on what it argued was Congressional approval (or acquiescence) in previous deferred actions. As if to rebut any claim that it was written simply to please OLC’s “client,” the Memorandum disapproved deferred action for the parents of “Dreamers,” the undocumented children protected under President Obama’s 2012 order, Deferred Action for Childhood Arrivals.

Many, even including some liberals, will not be persuaded by the OLC’s analysis. For example, Peter H. Schuck, a professor at Yale,wrote an op-ed piece in The New York Times stating that “as an immigration and administrative law teacher who strongly favors more legal immigration and even broader legislative relief than Mr. Obama’s order grants (and who voted for him twice), I find [Obama’s arguments] unconvincing.“ Schuck explained:

President Obama has cited several cases of suspended enforcement as precedent. But in those cases, Congress had authorized the immigrants in question to apply for green cards; the president merely suspended enforcement against their closest family members until they, too, could get their own cards.

Most telling, Mr. Obama, a former constitutional law professor, once rejected the very arguments he now embraces. Last year he said that extending amnesty beyond the so-called Dreamers (the children of undocumented immigrants brought here at an early age) would be “ignoring the law in a way that I think would be very difficult to defend legally.” It is hard to think of a confession more damning to his position in a court of law, in a congressional court of impeachment and in the court of public opinion.

In our view, the legality of the President’s action is questionable at best, but what should Republicans do? Is it a battle worth fighting “tooth and nail” as Speaker Boehner put it? We think not. In Blog No. 50 we argued that for President Obama to take the  proposed executive actions would be a mistake and we believe that it was. Whatever the prospects for bipartisan cooperation might have been otherwise, they have now been greatly diminished. And, however one apportions blame for that result, it is clearly not in the national interest. The question now is whether Republicans will make an even greater mistake of their own by overreacting.

Republicans who urge an aggressive response may be bolstered by polling in advance of the President’s actions that showed 48% disapproving oft executive action and 38% approving. The question put to the respondents, however, did not spell out what the executive action would consist of, and many might have assumed a broader action (even, perhaps, a path to citizenship), than the steps actually taken. Once the relatively narrow impact of the actions is understood, the ratio of approval and disapproval may well change. Moreover, any of those who still disapproved of the President’s actions might also disapprove of drastic measures being taken in retaliation.

The Republican responses reportedly under consideration are not promising. Impeachment appeals only to the furthest reaches of the Tea Party Caucus or, as we sometimes refer to it, the Oozlum Caucus See, Blog No. 8.  Threats of a government shutdown are almost as unattractive. Various budgetary gimmicks are reportedly being discussed and might be attempted, but are unlikely to be effective. We are also skeptical that a lawsuit against the President and his actions would be successful. The issue of standing would be a major hurdle, and even if that were overcome, the end result would be uncertain and would not be reached for months and probably years. Such a lawsuit, however, would have the merit of allowing Republicans to let off steam without being unduly disruptive to the legislative process

One possible approach that occurs to us would be a bill suspending the effectiveness of the President’s actions for a period of, say, six months. That delay would give Congress a chance to pass substantive immigration legislation, either interim or long term, comprehensive or piecemeal, that would supersede the President’s executive actions. Failing to pass a bill in the specified time would mean that the President’s actions would then become operative. Such a bill would face opposition from die-hard, no-compromise Republicans and from Democrats reluctant to support a bill that could be interpreted as a rebuff to the President or might disappoint their Latino constituencies. Nevertheless, it should be supported in both the House and Senate by Republicans eager to demonstrate an ability to govern as well as to oppose, and to Democrats who have been quietly uncomfortable with the President’s actions. All in all, a long shot no doubt, but one worth considering.

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