I’m going to let you in on a secret about the 2020 presidential contest: Unless unforeseen circumstances lead to a true wave election, the legislative stakes will be extremely low. The odds are heavily stacked against Democrats’ retaking the Senate, and that means that even if a Democrat wins the White House, there will be no Medicare for All, no free college, and no “democratic socialism.” Democratic candidates are racing to the legislative left for the sake of programs they’ll never implement and legislation they’ll never pass. The promises they use to fire up the progressive base (and inflame red America) are promises they simply cannot keep.
Kamala Harris is smart enough to understand this fact, so she’s switched tactics. Why run for president when you can run for queen? That’s the upshot of the comprehensive immigration plan she released yesterday. Through executive action alone, it promises to create a roadmap to citizenship for millions of “Dreamers,” illegal immigrants brought to the United States as children.
Now, I happen to support a path to legal residence (and perhaps citizenship) for otherwise law-abiding Dreamers, but only in the context of a legislative deal that dramatically enhances our ability to control our border, including through asylum reform. (Otherwise, amnesty would be an illegal-immigration magnet that only intensifies the immense humanitarian challenge on the border.) But I also respect the constitutional order. I also know that no president — no matter how frustrated — has the ability to amend American law on his or her own. And that’s what Kamala Harris intends to do.
In addition to expanding President Obama’s DACA program — in part by “eliminating the requirement that Dreamers apply before they turn 31 years-old” and extending the definition of a Dreamer to cover all those brought to the country at age 17 or younger, rather than age 15 or younger — Harris would attempt to render Dreamers eligible for green cards. To do that, however, she would have to wave the executive magic wand, unilaterally “paroling” them and declaring that their unlawful immigration status exists through “no fault of their own.” Harris’s plan explains:
Currently, the INA is interpreted as barring many Dreamers from adjusting their immigration status because they’ve failed “to maintain continuously a lawful status since entry.” However, the INA includes an exception for immigrants whose inability to maintain status was, according to the statute, due to “no fault of [their] own.” Harris will issue a rulemaking [sic] clarifying the term “no fault of [their] own” includes being brought to the U.S. as a child.
Moreover, Harris would implement her own version of President Obama’s Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program, declaring that “parents of U.S. citizens and legal permanent residents will be eligible to apply for deferred action if they pass a background check and have lived in the U.S. since a specified date.”
The scope of the plan is immense. By Harris’s own calculations, it will “protect over 6 million [illegal] immigrants from deportation.”
But how is it legal? How can this plan survive when a divided Supreme Court affirmed a Fifth Circuit Court of Appeals opinion blocking DAPA? Unlike Obama, who created the DAPA program simply by writing a memorandum, Harris pledges that she’ll implement at least part of her plan through the Administrative Procedure Act. In fact, that’s precisely why progressive legal experts Vox interviewed believe her plan will prevail where Obama’s failed.
But the APA does not act as a kind of baptismal water, cleansing dramatic, unilateral changes in the law of the stain of illegality. Rulemaking is not intended as a mechanism for amending statutes, and presently, the Supreme Court is perhaps as skeptical of administrative authority as it’s been in recent history.
So, we can predict what will happen if Harris wins the White House and attempts to carry out her plan. The instant she promulgates her rules, a coalition of state attorneys general will file suit in a favorable jurisdiction. A district judge will enjoin the rules, the appeals process will take months (if not years), and then the case will ultimately land in front of a Supreme Court that is unquestionably more originalist than the equally divided court that rejected DAPA in 2016.
Harris’s promises are worse than promises for unattainable legislation. She’s promising to implement unattainable policy through unlawful means. She’s perpetuating one of the most malignant practices in modern politics: the habit of declaring that the president acts as a backstop for alleged congressional failure, a sovereign who steps up to trump a squabbling parliament.
Make no mistake, Harris isn’t just following Obama’s lead; she’s also mimicking Donald Trump. Presidential overreach is a thoroughly bipartisan problem, and now we’re seeing the logical next step — abuse of power as a campaign promise. Thankfully, it’s a promise she likely can’t keep.
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