President Obama is having trouble keeping his story straight on immigration. Sometimes he says that he is merely exercising prosecutorial discretion, like many previous presidents. He talks this way when he is trying to make a legal or constitutional argument for his recent executive order reducing the risk of deportation for 5 million illegal immigrants. At other times, though, he forthrightly suggests that he has “changed the law” — as he did when suggesting to hecklers who wanted a bigger change that they should be grateful for what they got.
In his speech announcing his order, Obama said that it was only fair to give illegal immigrants a chance to “get right with the law.” Hours earlier, though, the Justice Department’s Office of Legal Counsel had made it clear, in an analysis providing a legal justification for the order, that the affected illegal immigrants would undergo no formal change in legal status.
That analysis suggests that the administration’s own lawyers believe that the affected illegal immigrants must still be subject to deportation, with their fate dependent on a “case-by-case review.” That case-by-case review is highly likely to be a polite fiction that covers the reality of a sweeping, if formally temporary, amnesty and a rewriting of immigration law (Josh Blackman takes up this contradiction elsewhere in this issue).
Whether this amnesty is an appropriate exercise of presidential power is not a close question. The president himself grasped the point well enough when he said, in 2011, that it would be wrong for him to implement a considerably less sweeping amnesty without legislative authorization, because that’s not how our system works. He did not suggest that the barrier between him and his desire was a mere legal technicality that clever lawyers and op-ed writers could find a way around. The faithful execution of the laws is a major part of his job description, and granting work permits to illegal immigrants cannot plausibly be squared with it.
One reason the president issued his order nonetheless is that there is not much the opponents of that order can do to thwart it. They do not have the votes to impeach him, or to overcome a veto of any legislation that would undo his order. The immigration bureaucracy is almost entirely financed by fees, so it can continue to implement Obama’s policy even if Congress refuses to pass any legislation to fund it. And most legal observers think that courts will not consider it their place to strike down the president’s policy. (When immigration agents challenged Obama’s earlier, more limited version of the policy, a federal court suggested that Obama was breaking the law but dismissed the case for jurisdictional reasons.)
Republicans are therefore unsure how to respond to Obama’s order. Many of their leaders in Washington, D.C., suggest that the party should “move on.” They see no way to stop Obama; they think that opposition to an amnesty, even a constitutionally dubious one, will cost them Hispanic votes in 2016; and they fear that trying to fight Obama on this issue might lead Republicans to take counterproductive steps, like bringing on a government shutdown that makes them less popular. These Republicans say that we should not overreact to the president’s decision.
They are surely right about that. There is, however, also such a thing as underreaction. Inaction would demoralize a large number of conservatives, and perhaps lead some of them to demand precisely the sort of reckless responses that party strategists are trying to avert.
Inaction would also be an abdication of constitutional duty. The Constitution does not presuppose that all government officials will act in perfect obedience to it. It does presuppose that branches of the government will resist invasions of their rightful authority, and that their institutional self-interest will help preserve the constitutional order. If congressional Republicans meekly accept the president’s unconstitutional action, they will compound his offense.
That doesn’t mean that the Republicans must vanquish the president on this issue; they won’t. It doesn’t mean that they have to shut down the government, either. It means that they have to register the seriousness of their opposition and raise the political cost for Obama’s behavior.
At a minimum, they should refuse to provide funding for the immigration bureaucracy so long as it implements Obama’s executive amnesty. They should advance legislation now that provides for the continued funding of the federal government, except for the immigration service, into next year. They should at the same time advance a bill that funds the immigration service, too, but with a proviso forbidding it to implement Obama’s amnesty.
#page#Nancy Pelosi, the House Democratic leader, issued a statement vowing opposition to any plan of this sort: “We will not be enablers to a Republican Government Shutdown, partial or otherwise.” But there would be a shutdown only if Democrats blocked that first bill through a Senate filibuster or presidential veto. (It doesn’t matter what Pelosi’s House Democrats do.) They would have to kill a bill funding most of the government based on an objection about something it doesn’t include. That seems a hard position to sustain.
The second bill, Senate Democrats could kill. The immigration service would still be able to spend money collected from fees to implement Obama’s order. That fact would make Democratic intransigence over the first bill even more absurd: They would be shutting the government down over something that isn’t in the bill and that they do not even need.
The point of holding votes on this second bill, even if it is unlikely to pass, would be threefold. It would avoid Republican complicity in Obama’s end run around the Constitution. It would put congressmen on record about Obama’s action, which might help to demonstrate that opposition is bipartisan. And it would make the implementation of the amnesty a little bit harder.
Obama has said that if Republicans dislike his action, they should pass their own legislation on immigration: He is acting only because they have not done so. (This line of argument is a giveaway that he has acted legislatively.) What he really means is that they should enact an amnesty if they dislike his. Few Republicans will find that offer tempting, and none should. Even if a large-scale amnesty were a good idea, which it is not under current circumstances, passing one now in response to Obama would reward him for violating the Constitution.
But Republicans should take him at his word, and legislate on immigration — just not the way he wants them to. They could, for example, pass bills to step up enforcement of the immigration laws at the workplace and mandate improvements in tracking and deterring visa overstayers. And they could also seek to increase high-skilled immigration. Until now Democrats have blocked that idea, which they along with Republicans profess to support. They have blocked it because they wanted the high-tech companies that favor it to stay in the coalition backing a comprehensive bill including amnesty. Now that Obama has implemented an amnesty on his own, though, Republicans should find it easier to separate the issues.
Republicans should also take other steps to signal their opposition. They should vote against the confirmation of Obama’s nominees, particularly for offices that would be involved in implementing the amnesty, as Senator Ted Cruz has suggested.
As these fights continue, the 2016 presidential race will get under way. Hillary Clinton will presumably at some point pledge to support legislation giving the beneficiaries of Obama’s amnesty permanent legal status and to renew Obama’s amnesty if such legislation does not pass. Most Republican presidential candidates will presumably, and all should, say that they would not extend the amnesty on their own as it would be beyond their legitimate powers.
Republican strategists will, and should, worry that this stance will alienate Hispanic voters. They cannot out-amnesty the Democrats. They can, however, hold out the possibility of legal status, and possibly even citizenship, for some illegal immigrants. But they should raise this possibility while avoiding the pitfalls of the type of “comprehensive immigration reform” that all the great and good have promoted in Washington over the last decade.
They should instead explain that they support a step-by-step approach. Under that approach, they would increase enforcement and follow it with an amnesty for illegal immigrants who came here as minors. Once it was clear that Washington was serious about enforcement, and that it had survived legal challenges, a broader amnesty could be enacted without fear that it would lead to a new wave of illegal immigration. Polling suggests that a strong majority of Americans worry about illegal immigration but are open in principle to an amnesty. The federal government should act in a manner that builds their trust.
This approach to immigration would balance competing interests rather than declaring some of them illegitimate. It would take seriously the concerns of low-wage workers, who would not be asked to compete with a large number of guest workers. It would neither condemn the desire of employers for a larger labor supply nor treat it as an imperative. It would say no to an immediate amnesty without closing the door to an eventual one.
That’s what conservatives should be for. That, and doing what they’re for constitutionally.