When President Obama unilaterally changed immigration policy after repeatedly and correctly insisting that he lacked the constitutional power to do it, he said that congressional inaction had forced his hand. In the case of his first major unilateral move — “Deferred Action for Childhood Arrivals,” which gave quasi-legal status to illegal immigrants who came or were brought here as minors — the truth is closer to the reverse. Obama acted to head off the possibility of a bipartisan solution to the issue; he wanted to sharpen the distinction between the parties on this issue in the run-up to the 2012 election. The gambit succeeded. Even Republicans who approved of granting legal status to this group balked at the president’s effective rewriting of law to achieve it, and so it was possible to cast them as the callous enemies of nonwhite children.
That was more or less the same play being followed Tuesday as the Supreme Court considered whether the Trump administration may rescind the Obama policy. As sympathetic as most of the beneficiaries of the Obama policy are, the Court should not hesitate to allow the change. If Obama was abusing his discretion over law enforcement to subvert the laws, as we believe, then Trump is merely bringing executive practice back into conformity with them, which has to be within his power. But the case for allowing Trump to make this change holds even if we are wrong and the Obama policy is constitutionally permissible. In that case, the executive branch can exercise its broad discretion over enforcement to make this group of illegal immigrants effectively exempt from deportation, and thus has to be able to use that discretion to make them subject to it. Enforcement priorities aren’t for the courts to second-guess.
If the Court does the right thing, Congress and the president should follow suit by enacting immigration legislation that includes a grant of legal status for most illegal immigrants who came here as minors. Note that this amnesty would have to be limited to those who had spent enough time here to put down roots and to have stayed out of serious trouble. At the same time, legislation would have to include provisions to keep the amnesty from becoming an invitation to further illegal immigration. These provisions would ideally include mandatory verification of the legal status of companies’ new hires.
A deal like that would give something to those Americans who have been waiting for more seriousness in enforcement of the immigration laws, to those Americans who have been waiting for a solution to the problem of stateless people we have allowed to build up, and those Americans with a foot in both camps. Perhaps it would even pave the way for a future deal that swept in other aspects of immigration policy.
This kind of lawmaking may be beyond the capacity of today’s political class. But if Congress and the president fail to respond sensibly and humanely to a legally sound decision by the Supreme Court, the fault will be theirs and not that of the justices.