President Obama will sign an executive order that will affect some 5 million undocumented immigrants, shielding them from deportation. As the president noted in announcing his executive order last night, he does not have the legal authority to grant these 5 million people a pathway to citizenship or even access to a green card. Republicans decided to go ballistic, accusing the president of an unconstitutional over-reach.
The president’s speech, and the materials the White House was putting out last night, all struck a strangely defensive tone at the beginning. There was a lot of focus on deporting criminals, and much less on the basic social justice issues at stake in the fight over immigration. I suppose the president’s pollsters think this line of argument will work better, but still, I think it misses the point to some degree. I am not in favor of naïve idealism in a politician, but if the midterms showed us anything, it was that the Democrats not only lost, they lost for no good reason because they encouraged Obama not to take these actions before the election. It is okay to stand on principle especially if, like Obama, you are never going to face the electorate again. And, am I the only one who resents the focus on “highly skilled” immigrants being able to get to the front of the line? It may be good for business. It is immoral.
President Obama was right to taunt Republicans for their inaction on the issue. And, he even taunted them to attempt a government shutdown. He may read the political tea leaves differently from congressional Republicans because presidential elections have a wildly different electorate from that encountered in midterm elections. If the GOP spends the next few months and even years battling to make it easier to deport family members, they will doom themselves as a national party for decades. They know this, but because of their gerrymandered districts, the individual members of Congress do not have to worry about losing the Latino vote. Still, there is something Shakespearean here, watching Republicans greatest success – winning so many state legislatures and governorships in 2010 that they controlled the re-districting process in most states – turn into their Achilles heel.
Towards the end of the speech, the president sounded more like the guy who got elected and re-elected than he usually does in these White House speeches. He quoted from the Scripture, about a basic an authority for a moral argument as American public discourse permits, although given the deep skepticism about Obama, and the obviously cynical political calculations with which he has approached the immigration issue in the past, he should have added, “Don’t take my word for it. Look it up in the Book of Exodus!” He spoke movingly about a young woman, brought to the country at the age of four, now pursuing her third college degree. He rightly asked why in the world we, as a nation, would want to deport someone like that instead of welcoming her with open arms.
One of the items on the fact sheet distributed by the White House shows they are, at long last, listening to organized labor. Under the heading “Protecting victims of crime and human trafficking as well as workers,” the White House fact sheet said: “The Department of Labor (DOL) is expanding and strengthening immigration options for victims of crimes (U visas) and trafficking (T visas) who cooperate in government investigations. An interagency working group will also explore ways to ensure that workers can avail themselves of their labor and employment rights without fear of retaliation.” This is vitally important to prevent exploitation of undocumented workers and to protect the rights of American workers from unscrupulous employers.
Republicans claim that, whatever their thoughts on immigration reform, the president’s actions are more appropriate to those of an emperor than a president. Obama did not help himself here by deflecting complaints about his lack of action on immigration reform in his first term by saying his hands were tied, there was only so much he could do without congressional action, etc. But, in fact, as his staff should have alerted him, both Presidents Ronald Reagan and George H. W. Bush took similar actions during their presidencies, and we did not hear any complaints from the GOP about presidential overreach. Certainly, I do not recall anyone arguing for impeachment.
Republican complaints about executive overreach also run into a different problem. The Supreme Court has already had something to say on the subject, even though the key issue in the case was different. In Arizona v. United States, the Court threw out an Arizona statute that sought more restrictive anti-immigrant measures than the federal government required. The decision was 5-3, with Chief Justice John Roberts and Associate Justice Anthony Kennedy in the majority. (It would have been 6-3 but Elena Kagan recused herself.) The opinion of the Court stated:
Congress has specified which aliens may be removed from the United States and the procedures for doing so. Aliens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law. Removal is a civil, not criminal, matter. A principal feature of the removal system is the broad discretion exercised by immigration officials. Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal.
If the GOP leadership in Congress challenges Obama’s new policy in the courts, you can bet the lawyers for the president will highlight this part of that ruling. (h/t to Think Progress for calling attention to this ruling.)
Of course, getting into a debate about the limits of presidential authority may have its place, but in this instance, it is a distraction. Real people, with real families, are suffering and President Obama’s actions will help them. His actions may stretch the Constitutional limits on his power, but they do not break it. More to the point, if Speaker John Boehner cared more about the millions of people who are directly harmed by our country’s broken immigration system than he is about losing support within his own caucus, he would bring the Senate-passed immigration bill up for a vote tomorrow and the President’s actions would become moot. Whatever my problems with Obama, on this issue or any other, there is no moral equivalence. The Speaker and his caucus are the problem. They can huff and they can puff but they can’t blow down the moral argument for bringing comprehensive immigration reform up for a vote. They have no moral authority on this issue until they do so.
The U.S. bishops do have moral authority on this issue. It was good to see the USCCB issue a statement within minutes of the president’s speech voicing their support for the actions he is taking. It was even better to see a quote from the president of the conference, Archbishop Joseph Kurtz, in that statement. Those of us who are tasked with reading all press releases from the USCCB know that statements issued only by committee chairs have less juice than something with a statement from the USCCB president. We can hope that the bishops will not let up in their advocacy on the issue in the weeks and months and years ahead.
Yes, years. The one thing Obama did not do last night is break the logjam on Capitol Hill. There is talk that his actions have killed any chance at passing comprehensive immigration reform, but you can’t kill something that is already dead. Similarly, charging Obama with poisoning the well of political compromise misses the fact that the well has been filled with toxins since he took office. For all my problems with his leadership or lack thereof, he is not the one at fault for our country’s broken immigration system. And, while the GOP enjoys their new majority in the Senate for the next two years, and their expanded majority in the House, their prospects for reclaiming the White House are headed for the salida.