Bench Memos

Obama’s Immigration Abuses

There have been a lot of excellent legal critiques of President Obama’s recently announced executive actions on immigration and of the Office of Legal Counsel opinion that the White House solicited. I will heartily recommend for your reading this NRO essay by Shannen Coffin and Michael Edney and this Wall Street Journal op-ed by David Rivkin and Elizabeth Price Foley. On the important broader distinction between legalistic constitutionalism and political constitutionalism, I’d also encourage you to read my Ethics and Public Policy Center colleague Yuval Levin’s take from the Corner.

But, as usual with this Administration, things are even worse than they first appear. According to this article in today’s Washington Post, many of the millions of illegal immigrants who would be protected from deportation under Obama’s actions would be eligible to receive Social Security, Medicare, and other federal benefits under the theory that they are “lawfully present in the United States.” But his theory would appear to contradict the reasoning of the OLC opinion, which repeatedly emphasizes that the proposed deferred-action programs would not alter the fact that the covered immigrants are unlawfully present in the United States:

[T]hese proposed deferred action programs would not ‘legalize’ any aliens who are unlawfully present in the United States.” [p. 2]

Deferred action does not confer any lawful immigration status. [p. 2]

Deferred action … expressly communicat[es] to the alien that his or her unlawful presence will be tolerated for a prescribed period of time. [pp. 20-21 (emphasis added)]

The contradictions between Obama’s legislative-style programs (“I just took an action to change the law,” he boasted yesterday) and his imposition of them by unilateral executive fiat will continue to compound.

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