Out of Order

by The Editors

Barack Obama’s disdain for the slow, grinding mechanisms of government has become unmistakable of late. So it is little surprise that, frustrated by congressional inaction on his proposal for “comprehensive immigration reform,” the president last month declared that he would “fix as much of our immigration system as I can on my own.” The result, intimated by White House senior adviser Dan Pfeiffer last week, is a “very significant” executive action to be unveiled by the end of the summer. If reports of the contents of the order are credible, not only will the action fail to “fix” America’s immigration system, it will further undo the constitutionally prescribed separation of powers that this administration has already done so much to weaken.

The White House is reportedly weighing two options for executive action similar in kind to the Deferred Action for Childhood Arrivals (DACA) program that was implemented — also by executive fiat, via memorandum — in 2012. One option would grant temporary legal status to illegal-immigrant parents of U.S. citizens, authorizing them to remain in the country and to work here. The second option would do the same for illegal-immigrant parents of DACA recipients. These actions could affect anywhere from 3 to 6 million people.

Although the specifics are unknown, any unilateral action of this magnitude and type would be unprecedented. Permission to work would secure for millions of illegal immigrants the benefits of lawful status despite the absence of a green card or a pathway to citizenship. Already illegal immigrants, taken in toto, represent a net drag on the American economy of $55 billion a year, according to the Heritage Foundation, since they and their families make use of direct benefits (such as Social Security and Medicare), means-tested welfare benefits, public education, and other government-funded resources. The tacit moral sanction granted by a new DACA-type program would ensure that program participants are eventually guaranteed these services.

It is not unlikely that a new program would, like DACA, be pitched as a temporary measure. DACA deferrals, for instance, are given in two-year increments, after which recipients must renew their grant. But these “temporary” programs are no such thing. Consider Temporary Protected Status, established in 1990 to provide for illegal immigrants who, for reasons of war or natural disaster, cannot return to their home countries at the moment, but who do not qualify as refugees. Not one TPS beneficiary has been deported because his status expired. TPS status still shields Honduran refugees fleeing Hurricane Mitch, which struck in 1998. By this precedent, there is no reason to believe the Obama administration will aggressively enforce any new, supposedly temporary program.

In addition, any new DACA-style program will have the tendency to encompass persons beyond its target demographic. As U.S. Citizenship and Immigration Services (USCIS) officers report in the wake of DACA, anyone who appears to be under the maximum deferral age — that is, any illegal immigrant who appears younger than 33 years old — is presumed to be eligible for DACA. As of March 31, some 550,000 “DREAMers” have received permits under the order, but the program has functionally shielded from investigatory and/or enforcement actions probably 2 to 3 million illegal immigrants. No doubt a similar presumption would obtain under a new program, protecting millions who are technically ineligible.

DACA also belies the claim that unilateral executive actions are simply large-scale enactments of prosecutorial discretion, pragmatic measures necessitated by the federal government’s lack of resources. DACA has proven to involve a massive expenditure of both time and money that has required USCIS officers to table entrance applications from legal immigrants to accommodate the deluge of applicants from illegal immigrants. A de facto amnesty of 5 million illegal immigrants would overwhelm an already inundated system.

The problem, though, is finally one of constitutional order. Is Congress — and, through it, the electorate — responsible for the laws governing America’s borders? Or does one man get to decide who may enter and work in the United States? The assumption by the president of the ability to unilaterally welcome or reject migrants is a rank violation of the separation of powers. The president would no longer be enforcing existing law; he would be writing it anew at will on a scale heretofore unimagined.

Earlier this month Texas Republican senator Ted Cruz introduced a bill (S. 2666) that would cut off federal funds for the continued implementation of DACA and would prohibit any “agency or instrumentality of the Federal Government” from using federal resources “to authorize any alien to work in the United States” who was not lawfully admitted under the Immigration and Nationality Act. Although the bill is unlikely to pass the Democrat-controlled Senate, it will put pressure on red-state Democrats to defend their decision to countenance this executive-branch power grab.

Perhaps that can assist in the Republican campaign to retake the Senate. The campaign to restore immigration laws, and the rightful place of Congress in our constitutional order, will take much longer.

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