|A story today in The New York Times reported that the Obama administration has adopted a new policy whereby certain undocumented immigrants can now avoid the threat of deportation and will be able to apply for work permits to allow them to stay and work here.
According to the Times article:
"The policy, effective immediately, will apply to people who are currently no more than 30 years old, who arrived in the country before they turned 16 and have lived in the United States for five years. They must also have no criminal record, and have earned a high school diploma, be in school or have served in the military."
According to the article, the administration sought a policy that was "more efficient, more fair and more just"" and also sought to fix a broken system where Congress had failed to do so. The new policy looks solidly to the Dream Act in its method and objective. The Dream Act is longstanding attempted legislation that has sought to create a fair, just, and effective pathway to citizenship for undocumented immigrants, but has failed to become law since its proposal more than a decade ago. Today's action by the president is an executive order. As such, it sidesteps Congress and all the logjams that have failed to produce the comprehensive immigration reform for which many have clamored and for which the president has advocated.
An Unsurprising, Brilliant Tack
Today's move should surprise no one. It represents a continuation of several trends in immigration policy and enforcement and how the Obama administration is exercising its powers in the face of stiff, hyper-partisan obstruction in Congress. It is, as President Obama would call it, an "evolution." It is also a bold, creative, and judicious use of the constitutional authority afforded him.
Nearly a year ago, on June 17, the Obama administration seriously curtailed its deportation efforts. In a U.S. Immigration and Customs Enforcement ("ICE") memo, the ICE Director John Morton invoked the doctrine of prosecutorial discretion to more favorably enforce the immigration laws on the books. The ICE memo established just two things in deciding priorities of immigration enforcement: security and safety. Enforcement actions that advanced those two goals would receive priority; actions that did not would simply languish. Factors under consideration in individual cases included criminal record, length of time in the country, education, whether the person was a minor when he or she arrived (and thus an inquiry into intent and blameworthiness), and potential safety concerns. Notably, ICE extended this broad discretion to all manner of personnel, from mere officers and agents all the way to the prosecuting attorneys who have to bring the cases in deference to serious due process concerns.
The administration's policy stance today squares that circle, and further reconciles the laws with actual practice. Look at tax policy as an example. Currently, undocumented immigrants can stay in the country and work and pay taxes. No, they do not have social security numbers. However, they can get an ITIN from the Internal Revenue Service which serves the same purpose for revenue reporting purposes, and allows them to pay taxes just like any other citizen while they continue to remain here (and continue to fund a system which publicly states its intent to remove them).
Further, today's announcement sets out one more example of the Obama administration exercising its powers and taking strong positions where it can, even as it is seemingly hemmed in by an intractable Congress. The constitution and tradition delegate authority to the president and the executive branch the powers to govern on issues such as foreign policy and immigration. Obama's presidency has been nothing else if not a textbook example of robust foreign policy executed with stunning efficiency. By example, see Bin Laden, see Libya, see Hillary Clinton's frequent flier miles. And there is not much Congress can do about it.
The executive branch, through the president, also has the power to enforce the laws. Should the president choose not to do so, again, Congress has few remedies available to it. Obama took full advantage of this with another controversial, cultural touchstone - gay marriage. In February 2011, the Obama administration, after an internal Justice Department review, announced that it would no longer enforce the Defense of Marriage Act ("DOMA"), after the review had found the law unconstitutional. Late last month, a federal appeals court in Boston similarly found core provisions of that law to be unconstitutional.
Political and Legal Soundness
In these areas, President Obama's powers as the executive are at their greatest. As such, today sets up an inevitable tension stemming from our constitution's separation of powers - between a Democratic presidency with the power to enforce the laws passed by Congress and the discretion to refuse to do so, and a Republican tail wagging a Congressional dog, which dog has the power of the purse and the ability to refuse the president the funds he needs.
Today's move also puts opponents of undocumented immigration into an extremely uncomfortable position. In Congress, for example, representatives in the House would actually have to sue the Executive Branch in order to force them to have the law enforced. Members of various state houses and assemblies would have to put new laws on the books that would require extensive drafting. Such effort would make it excruciatingly difficult for any of those parties attempting to compel the enforcement of anti-immigration laws to then turn around and argue that they actually represent the interests of certain blocs of their constituents. Further, depending on how the U.S. Supreme Court rules in the Arizona case, state houses might find crafting such anti-immigration laws not only politically unpalatable in an election year, but also legally, constitutionally impossible.