What Posner neglects is that the deferred action contemplated by the Obama administration does in fact represent a departure from current practice, as it would grant a broad class of unauthorized immigrants a work permit. A work permit is a valuable asset that would essentially turn unauthorized immigrants into authorized immigrants for various economic purposes, and it is the desirability of this formal legal status that has served as the impetus for the push for comprehensive immigration legislation.
Very few unauthorized immigrants have access to such work permits. (Seriously, ask anyone: formal legal status in the form of a federal work permit is pretty important to unauthorized immigrants and their allies, and it’s pretty different from de facto non-enforcement. Jessica Vaughan of the Center for Immigration Studies has addressed the extraordinary cases in which deferred action has been used in the past. Think Haitians fleeing the ravages of the 2010 earthquake or foreign students displaced by Hurricane Katrina.) If there were no meaningful difference between today’s semi-official policy towards unauthorized immigrants who don’t commit serious crimes and the status the president (reportedly) intends to offer them, we wouldn’t be having a roiling immigration debate.
I have to say I’m inclined to agree with Reihan on this. Robert Delahunty makes related points:
The White House keeps repeating that the president will be forced to act unilaterally on immigration because of a “do-nothing” Congress. That in itself is an admission the president would be taking action of a legislative kind.
Other presidents have not cast their grants of temporary relief to illegal aliens in such dramatic terms. And Obama himself acknowledged in his first term that he had no constitutional power to take the kind of steps he seems ready to authorize now.
Second, the White House plan will almost certainly include work authorization provisions. But ordering that measure would go beyond mere executive inaction. To confer such legal rights, the president would need a delegation of affirmative authority from Congress. To say that Congress has under-funded its deportation mandates is not enough. Where is this affirmative delegation?
Third and perhaps most important, Posner overlooks a massively obvious fact: a new presidential non-enforcement decision on immigration this campaign season comes against a pattern of repeated refusals to enforce the law in both immigration and other contexts. The administration’s unauthorized postponement last July of the employer mandate in its own health care law is but one of dozens of examples of this pattern.
For me, a critical point is that Obama himself has said before that he did not have the power to do this. It was part of his argument for putting pressure on the Congress. How would he square that contradiction? The legislature does not exist to obey the president – and if not, have him do the work by executive action. I completely understand the temptation. We do not have opposition in Congress; we have de facto nullification of a presidency. Nonetheless, it seems to me that Obama would be giving the GOP a weapon to add a smidgen of credibility to their otherwise absurd case for impeachment. He should resist it.