Obama’s Immigration Action: (Probably) Constitutional

by Peter Spiro

I was quoted in the NY Times on Friday on Obama’s executive action on immigration to the effect that it is unprecedented in scale and formality. I’ll stick to that position, but that doesn’t mean that I think that the executive action is unconstitutional. Just a few thoughts to clear that up (especially since David Brooks used the quote on NPR to support his position against the action).

The action may be unprecedented, but not in a discontinuous way. The media is full of discussions of prior “deferred action” programs, most of them involving global hot spots. Immigration enforcement has always been severely underfunded, which has demanded systematic identification of enforcement priorities. Once a matter of internal administrative guidance, since John Lennon forced transparency in the early 1970s these priorities have been a matter of public record.

But there’s never been anything like this in terms of numbers. More important, no president has undertaken this kind of program in the face of this kind of opposition. No other president appears to have used executive action to break a legislative logjam.

Consider the “Family Fairness” program undertaken by the George H.W. Bush administration in February 1990 to protect spouses and children of those whose status was regularized under the landmark 1986 legislation, a precedent that got a lot of play last week. The action affected a large number (as many as 1.5 million). It also involved work authorization. But the action appears to have been utterly uncontroversial. The action was announced by the commissioner of the INS, not the White House. The NY Times item reporting the action (published on page 28) did not so much as mention George Bush much less any opposition to the move. Subsequent legislative validation was hardly reported at all (it was part of a package that increased annual legal immigration quotas). In short, the Bush administration move was uncontested. (UPDATE: The Washington Post debunks the 1.5 million figure here. It was probably under 100,000, which helps explain the absence of controversy.)

That makes it a pretty weak precedent. The Obama action, to say the least, is being vigorously contested. It doesn’t mean Obama’s action is unconstitutional. It means that the Obama action is provisional. It could be overcome.

The courts will stay away. It’s not clear who would have standing to challenge the action. Even if a court got to the merits, there is recent precedent (the 2012 decision in Arizona v. United States) clearly inscribing the president’s prosecutorial discretion over immigration enforcement.

Congress will have to carry its own water in overcoming the Obama move, with assists from other elites and the public at large. I’m not sure what it would take beyond an improbable defunding. We may see non-binding “sense of” resolutions decrying the action in constitutional terms. Those would count for something as formal institutional pronouncements.

The ultimate test may be whether Congress eventually comes on board and fully regularizes the status of beneficiaries of the executive action. No Republican president is going to reverse the action and start deporting these sympathetic people. But that doesn’t mean Congress will adopt Obama’s action as a matter of law. Listen for those (like David Brooks) who favor real immigration reform but oppose the Obama move. That’s the control group on the constitutional issue.

Meanwhile, immigrants covered by the executive action are definitely better off for it. But their status will still be second-class. The government will discriminate against them on benefits like health care, and of course they won’t have the vote. Their ultimate status may depend on whether Obama’s constitutional gambit is a successful one, and everybody falls into line with it.

http://opiniojuris.org/2014/11/23/obamas-immigration-action-probably-constitutional/

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