Postelection update: Illegal immigration

Neither party deserves praise for letting immigration reform slide year after year, not with at least 11 million illegal immigrants in the country and more continuing to arrive. But the showdown now looming won’t resolve matters, and it could promote disrespect of the law.

This entry will reprise recent developments, discuss the president’s contemplated executive order, and suggest how the other side should respond.

A. Let’s review the bidding – One of several top goals in the president’s second inaugural address was fixing the US immigration system. We questioned the priorities reflected in the speech, e.g., greater concern about climate change than about rebooting the economy or addressing the fiscal problem, and also a lack of specifics as to how highlighted issues would be addressed. Back to the drawing board after inaugural address, 1/28/13.

It makes no sense to move an issue to the top of the queue without identifying a solution, but no solutions were presented. Thus, it is one thing to advocate a warm welcome for “the striving, hopeful immigrants who still see American as a land of opportunity,” and quite another to come up with a way to regularize the status of illegal immigrants without either persecuting them or rewarding them for breaking the law.

Other items on the president’s wish list (combat climate change, gay rights, pay equity for women, & gun controls) were out of synch with congressional priorities, but immigration “reform” seemed like a possible winner. A massive bill was drafted in the Senate by a “gang of 8” (
Democrats: Bennett, Durbin, Menendez, Schumer; Republicans: Flake, Graham, McCain, Rubio), introduced with a flourish, and received solid Democratic support plus 14 Republican votes. Immigration reform bill 2013: Senate passes legislation 68-32, Seung Min Kim, Politico, 6/27/13.

SAFE followed the Senate bill (S. 744) as it was taking shape, concluded that it would not significantly deter illegal immigration, and proposed a different approach. The biggest difference was to focus on turning off the jobs magnet versus beefing up security along the Southern Border. Immigration reform, SAFE,
June 2013.

House Speaker John Boehner et al. seemed disposed to support a comprehensive immigration bill, thereby setting up a reconciliation process that would have predictably resulted in legislation similar to the Senate bill being enacted. Conservative Republicans in the House were dead set against the Senate bill, however, and they succeeded in dissuading the leadership from bringing immigration legislation to the floor.

One reason for resisting immigration legislation was skepticism that the president would enforce whatever enforcement provisions might be included in it. After all, conservatives said, he had been less than zealous about enforcement of the immigration laws already on the books. Republicans blame Obama for stalling immigration [legislation], AP,
2/3/14.

"Here's the issue that all Republicans agree on: We don't trust the president to enforce the law," said Paul Ryan, his party's vice presidential nominee in 2012.

After Speaker Boehner informed the president that there would be no House immigration bill in 2014 and the president started talking about acting on his own, SAFE took another look at the subject – and reached the same conclusions as before. Revisiting the illegal immigration problem,
7/7/14.

Summing up, we don’t see any reason to change our minds about the best approach to immigration reform. The design of S. 744 continues to seem deficient, and handling of the current crisis [a surge in youthful immigrants from Central American countries, who once across the border could not be readily deported] inspires little confidence that the administration is up to leading a general overhaul of the system. However, Republicans must get their act together if they hope to offer a viable alternative.

In ensuing weeks, the president et al. blamed the “humanitarian crisis” along the Southern Border on House Republicans for blocking the Senate immigration bill (although there was no reason to think that passage of this legislation would have averted the crisis) and let it be known that an executive order would be coming soon – maybe after Labor Day but definitely before the end of September. Our reactions were presented in another blog entry. Watch out for a power grab on immigration,
8/25/14.

All things considered, we would greatly prefer a legislative solution on immigration to aggressive executive action. Indeed, the president has already gone farther than he should have in changing existing policies. The result has been to substitute compassion (aka politics) for the national interest in setting this country’s immigration laws, which we think is clearly the wrong way to go.

The executive order was later postponed until after the mid-term elections, but it is now back in play with action promised before the end of the year. Some of the back and forth on this topic was reported last week. Recalibrating the SAFE agenda,
11/10/14.

Nothing was said about an executive order in the president’s weekly address on November 8, but his intentions were confirmed in an interview broadcast after he had left on a trip to Asia. Obama vows to use executive order on immigration before new GOP Congress is sworn in, S.A. Miller, Washington Times,
11/9/14.

“I’d prefer, and still prefer, to see [reform] done through Congress. But every day that I wait, we’re misallocating resources, we’re deporting people that shouldn’t be deported, we’re not deporting folks that are dangerous and need to be deported,” Mr. Obama said in an interview aired Sunday on the CBS program “Face the Nation.”

B. Can he do that? – It has been understood for months that the president envisions granting some form of legal status to millions of undocumented residents (aka illegal immigrants) – thereby shielding them from deportation under existing law. The purported urgency of such action is debatable, as most illegal immigrants currently face limited risk of deportation unless they have been convicted of other serious crimes. Contrary to what you hear, Obama is deporting fewer, allowing more criminals to stay, Gabrielle Morrongielo, dailysignal.com, 10/19/14.

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More specific information is now available. Although White House aides deny that the president has made any final decisions, the leaked plan document may nevertheless be indicative of what is coming. Source: Obama to announce 10-point immigration plan via exec action as early as next week, Lucas Tomlinson, Fox News
11/13/14.

Some 600K illegal immigrants are already participating in the Deferred Action for Childhood Arrivals (DACA) program that was created by an executive order in June 2012. Two years and counting: Assessing the growing power of DACA, immigrationpolicy.org,
June 2014.

As of March 2014, 673,417 young people have applied to the program and 553,197 have been approved. While DACA does not offer a pathway to legalization, it has the potential to move large numbers of eligible young adults into mainstream life, thereby improving their social and economic well-being.

In addition to expanding the DACA program to cover some 300K additional childhood arrivals, the executive order would grant deferred action status to some 4.5 million or more illegal immigrant adults with US-born children.

Note that there is more to deferred action status than a deportation reprieve, namely those who qualify also receive work authorization in the United States, Social Security numbers and government-issued IDs.

Another interesting point is a pay increase for immigration officers, many of whom have been highly critical of administration policies that have frustrated the performance of their duties under applicable laws. Hmm, sounds a bit like a bribe to keep quiet.

What the president seems bent on doing is hard to square with Article I, Section 1 of the Constitution: “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

In other words, the president’s role under the Constitution is not to make the laws of this country, whether by ignoring laws he doesn’t like or issuing new ones, it is to “take Care that the Laws be faithfully executed.” Article II, Section 3.

And don’t take our word for this, because some high profile observers have said much the same thing – including columnist Charles Krauthammer, liberal law professor Jonathan Turley, and the Washington Post. Watch out for a power grab on immigration,
8/25/14.

So, for that matter, has the president himself. Obama [in a Telemundo interview]: I’m not a king, I can’t just ignore immigration laws, Charlie Sperling, Washington Examiner,
1/30/13.

The president’s thinking seems to have evolved since 2013, however, and he now explains the contemplated executive order as follows. He waited patiently – Speaker Boehner was unable to deliver a bill – his only play was to act administratively – his action would be a stopgap measure, and as soon as Congress passed “a bill that addressed the problems with immigration reform,” he would sign the bill and “it supersedes whatever actions I take.” Excerpt from
November 9 interview with Bob Schieffer, video (1:09).



The foregoing does not establish a constitutional basis for the president to usurp the legislative powers of Congress and then set himself up to judge the merits of any subsequent legislation. And the expectations raised by an executive order that resulted in issuing social security numbers, IDs, etc. to millions of people, as is apparently intended, would not go away if Congress passed inconsistent legislation later.

Moreover, an executive order would be more likely to block than to facilitate action on the illegal immigration problem. Obama’s immigration temptation, Wall Street Journal, 11/12/14 (no link available).

As for the politics, we think there’s a good chance Republicans would pass immigration reform in some form in the next two years. The leadership wants to do it, and a majority of the rank and file privately want to vote for it to end the debate. Most realize the growing importance of minority voters to the GOP’s chances of winning the presidency. *** [However, an executive order] could empower the GOP’s yahoo wing and make it harder for even [piecemeal reform] bills to pass.

So it’s hard to see the president’s proposed course of action as anything other than a political ploy, which would fly in the face of, rather than honor, the results of the mid-term elections. What happened? Thomas Sowell, townhall.com,
11/11/14.

Despite the Republican sweep of elections across the country last week, President Obama has issued an ultimatum to Congress, to either pass the kind of immigration law he wants before the end of this year or he will issue Executive Orders changing the country's immigration laws unilaterally. Does that sound like a lame duck president? On the contrary, it sounds more like some banana republic's dictator. Nor is Obama making an idle bluff. He has already changed other laws unilaterally, including the work requirement in welfare reform laws passed during the Clinton administration.

C. Crafting a response – OK, if one doesn’t like what the president is proposing, what can be done about it? Basically, the GOP is split on this question and has yet to come up with any solid answers.

THEORY X - Some Republicans would like to negotiate a face-saving compromise. They say the voters are tired of the bickering in Washington, and are looking for the GOP to show it can get some positive things done rather than simply opposing the president’s agenda. It’s also said the president should feel the same way, as his political legacy will suffer unless he works cooperatively on immigration reform and other matters.

Thus, three Republican members of the Gang of 8 wrote to the president urging that he defer executive action on immigration for a few months so the new Congress would have an opportunity to weigh in on the subject. [Senator] John McCain: Amnesty by executive order would “dramatically harm” immigration reform, Bill Hoffmann, newsmax.com,
11/10/14.

[It] doesn't have to be the way we did it in the Senate, but maybe some parts of it or some aspects of immigration reform, but if he comes out with executive order that many of us, including me, believes is unconstitutional, then he's going to harm the effort really badly.

THEORY Y - Other Republicans envision creating a groundswell of opposition to an executive order that would force the president to think better of the matter. The game plan would be to defund the executive order (i.e., deny funds to implement it in the upcoming spending bill), consider litigation of some kind, and possibly even threaten to begin impeachment proceedings.

In this vein, six senators (Ted Cruz, Mike Crapo, Mike Lee, Pat Roberts, Jeff Sessions and David Vitter) penned a letter to Senator Harry Reid (still Senate majority leader for the lame-duck session) urging cooperative action to force the president to back off. Why these 6 senators say Obama is risking a “constitutional crisis” over amnesty, Kate Scanlon, dailysignal.com,
11/5/14.


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The defunding technique is commonly used, according to Senator Sessions, when Congress is seeking to influence the details of Executive Branch policies, e.g., by preventing closure of the Guantanamo Bay prison, and it could equally well frustrate an executive order on immigration policy. No surrender on immigration; who will protect the nation, if not us? Sen. Jeff Sessions, Politico,
11/10/14.

President Obama’s executive amnesty will not be easy to execute. U.S. Citizenship and Immigration Services will have to be ordered to redirect funds and personnel away from its statutorily mandated enforcement duties and towards processing applications, amnesty benefits, and employment authorizations for illegal immigrants and illegal overstays. It is a massive and expensive operation. And it cannot be implemented if Congress simply includes routine language on any government funding bill prohibiting the expenditure of funds for this unlawful purpose.

In the House, dozens of members have signed a letter advocating the defunding approach. Republican pressure builds to block Obama’s unilateral immigration order, Stephen Dinan, Washington Times,
11/12/14.

SYNTHESIS - To date, House Speaker John Boehner and Senate Minority [soon to be Majority] Leader Mitch McConnell have attempted to straddle the fence, making tough statements about the president’s position on immigration reform without offering credible commitments to back them up.

See, e.g., “Boehner: I’ll fight Obama ‘tooth and nail’ on immigration,” Sean Lengell, Washington Examiner,
11/13/14.

•"This is the wrong way to govern. And so all the options are on the table."

•When asked if such options include threatening a government shutdown by withholding funding for government agencies, the speaker said such a move isn’t desirable. “Our goal here is to stop the president from violating his own oath of office and violating the Constitution. It’s not to shut down the government.”


For his part, Senator McConnell characterized the president’s plan as “a big mistake.” Report: Obama will soon announce 10-point plan for illegals, Todd Beamon, newsmax.com,
11/12/14.

President Obama has a duty to help build the trust we all need to move forward together, not to double-down on old ways of doing business. That's why I think moving forward with the unilateral action on immigration he's planned would be a big mistake.

McConnell wants no part of a government shutdown, for which Republicans would be blamed if they attempted to defund executive action on immigration and Democrats escalated the situation. McConnell rules out government shutdown, Stephen Dinan, Washington Times,
11/13/14.

[Defunding] is a well-tested way of Congress stopping the president. But Senate Democrats, who are still the majority for the rest of this year, could refuse to pass that, and even if they did, Mr. Obama could veto it, leaving the GOP with the options of caving and passing a spending bill without the restrictions, or else refusing to pass a bill and sending the government into a partial shutdown.

Boehner has also said unilateral action on immigration might be included in a proposed lawsuit against the president for overreaching his authority. Even assuming such a suit could succeed on the merits (Republicans are reportedly having trouble lining up a D.C. area law firm), it would probably take too long to do any good. Boehner weighs expanding suit on Obama executive power to cover immigration, Robert Costa & Ed O’Keefe, Washington Post,
11/13/14.

FURTHER THOUGHTS – Not being a political organization, SAFE will refrain from commenting on the personalities or motives of the key figures in this drama. Let the American public decide who is out of line.

As a policy matter, however, the Senate immigration bill was seriously defective and we see no reason to believe that the president’s administrative plan would be any better.

Furthermore, the proposal to implement this plan by executive action seems, as Charles Krauthammer recently put it, “constitutionally odious.”

As for the response, we would offer the following suggestions to Republicans:

•Rhetoric – you’ve been making essentially the right points about the president’s proposed course of action, keep it up, but avoid making empty threats.

•Cooperation – being willing to work with the president is fine, but don’t count on a favorable response and don’t give away the store if he does agree to engage.

•Defunding – this strategy is worth considering as a last resort, but it certainly can’t work until the next Congress, when Republicans will control both houses. For now, offer a “clean” extension of the Continuing Resolution (which currently runs through December 11) until, say, March 1.

•Litigation or impeachment – unless a substantial number of Democrats are willing to support such measures, forget it!

•Legislation – you will control both houses of Congress next year, so start working on the immigration law changes that you think should be made. The work can be done in a piecemeal fashion, there’s no need for another mega bill like GovCare, GovFinance or S. 744. Allow time for debate and be open to amendments if they make sense. If the bills are successfully filibustered in the Senate or vetoed by the president, you will at least have established a record of trying to get something done that can be pointed to in 2016.
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