Chewing Over Executive Action On Immigration


Readers know that my first instinct on hearing of president Obama’s decision to defer deportations for hundreds of thousands of illegal immigrants in the near future was to oppose it:

Instead of forcing the GOP to come up with a compromise bill – which if it can, great, and if it cannot, will split the GOP in two – he’d merely recast the debate around whether he is a “lawless dictator”, etc etc. rather than whether it is humane or rational to keep millions of people in illegal limbo indefinitely. It would strengthen those dead-ender factions in the House that are looking for an excuse to impeach. It would unify the GOP on an issue where it is, in fact, deeply divided. And it would not guarantee a real or durable solution to the clusterfuck.

Among the more impassioned advocates of this view is Ross Douthat, whose conservatism and reason I respect a great deal (so sue me). He concedes that deferring deportations is indeed part of a president’s legal prosecutorial discretion but believes the context makes the current proposal outrageous. Money quote:

The reality is there is no agreed-upon limit to the scope of prosecutorial discretion in immigration law because no president has attempted anything remotely like what Obama is contemplating. In past cases, presidents used the powers he’s invoking to grant work permits to modest, clearly defined populations facing some obvious impediment (war, persecution, natural disaster) to returning home. None of those moves even approached this plan’s scale, none attempted to transform a major public policy debate, and none were deployed as blackmail against a Congress unwilling to work the president’s will.

The trouble with this argument is that the very text to which Ross links argues against him. There were indeed previous instances in which vast numbers of illegal immigrants were granted deferred relief, pending legislative gridlock or delay, by presidential discretion:

As Congress was debating the  Immigration Reform and Control Act (IRCA) of 1986, it weighed and opted not to provide a legalization pathway for the immediate relatives of aliens who met the requirements of IRCA unless they too met those requirements. As IRCA’s legalization programs were being implemented, the cases of unauthorized spouses and children who were not eligible to adjust with their family came to the fore. In 1987, Attorney General Edward Meese authorized the INS district directors to defer deportation proceedings where “compelling or humanitarian factors existed.” Legislation addressing this population was introduced throughout the 1980s, but not enacted. In 1990, INS Commissioner Gene McNary issued a new “Family Fairness” policy for family members of aliens legalized through IRCA, dropping the where “compelling or humanitarian factors existed” requirement. At the time, McNary stated that an estimated 1.5 million unauthorized aliens would benefit from the policy. The new policy also allowed the unauthorized spouses and children to apply for employment authorizations.

So both Reagan and the first Bush did exactly what Obama is proposing, as the AP has also reported, and their measures involved 1.5 million people. More to the point, the deferrals were for family members whose deportations would split parents from children. And that’s why Ross’s refusal even to address the humanitarian issue here is so disappointing. For someone who is often a stickler for Catholics in public life to follow their bishops’ lead, he is certainly treading on highly un-Catholic ground here in insisting that legal children separated from their illegal parents. The US Catholic Bishops regard this as an issue of “great moral urgency”:

As pastors, we witness each day the human consequences of a broken immigration system. Families are separated through deportation, migrant workers are exploited in the workplace, and migrants die in the desert … Immigration is a challenge that has confounded our nation for years, with little action from our federally elected officials. It is a matter of great moral urgency that cannot wait any longer for action.

As someone who has been through the immigration system – surviving the HIV immigration and travel ban for twenty years – I perhaps have a more personal understanding of this.

It is hard to describe the psychological agony of an immigration service having the power to tear your family apart, especially when it has been built in America for many years. These are human beings we are talking about – not abstractions in a partisan mudfight. They are mothers about to be separated from their children – and treated as inferior to them. They have no rights, even though they may have contributed a huge amount to the US economy, and have often displayed real tenacity in building strong and intimate families. They face real deadlines, and Obama, for a long time, has not stinted in deporting them under the law, as a (futile) way of building trust with the GOP.

It is also true that the House GOP does not seem to have any intention of moving on comprehensive immigration reform, preferring simply to build an even bigger fence on the Southern border, while the Senate has already passed a bipartisan comprehensive bill. Obama campaigned on this issue in 2008 and 2012. Majorities in the country favor a path to citizenship. Obama has said any action he takes would be superseded immediately by any new law. In a sane polity, Obama’s threat would lead to a commitment by the GOP to move a bill forward to address the core issues promptly. And I certainly favor that. Such prosecutorial discretion should never be considered as an alternative to legislation – just relief to individuals trapped in a limbo that would tear their families apart.

I still favor Obama’s deferral of his deferral in the interests of a more productive and constructive relationship with the GOP over the next two years. But that’s a prudential judgment of the politics of this. And it’s a close call. Far closer than Ross or the GOP would have anyone believe.

(Photo: US President Barack Obama pauses during a press conference in the East Room of the White House on November 5, 2014. By Brendan Smialowski/Getty Images.)