Chewing Over Executive Action On Immigration, Ctd

I’ve been struggling with the issue of precedents for Obama’s proposed deferral of deportation initiative, so it behooves me to link to Mark Krikorian’s argument that the Reagan and Bush deferrals should not be counted as apposite. His first point is numerical:

Despite claims at the time that “as many as 1.5 million” illegal aliens might benefit from the policy, the actual number was much, much smaller. In 1990, Congress passed legislation granting green cards to “legalization dependents” — in effect codifying the executive action Bush had taken a just few months earlier. That (lawful) measure actually cast the net wider than Bush’s action, and yet only about 140,000 people took advantage of it — less than one-tenth the number advocates claim.

But could it be that the purported beneficiaries of the current deferral are also being over-estimated? What matters, surely, is how many children Reagan and Bush thought would be protected by their executive actions, if we are looking for a precise precedent of presidential intent. And the Reagan/Bush precedent did give the deferred the right to work. There’s also the argument that as a percentage of the total population of illegal immigrants, the numbers are not so dissimilar. In 1990, there were an estimated 3.5 million illegal immigrants in the US – so deferring deportation for 1.5 million meant deferring it for 43 percent of the relevant population. In 2014, there are 11.7 million illegal immigrants, of which up to 4 million would be affected by the proposed deferral. That’s 34 percent or 42 percent if you include the DREAMERs. Seems like a rough precedent to me.

Then Kirkorian argues that the Reagan/Bush precedent was a mere tidying up after the 1986 amnesty – and not a unilateral attempt to bypass the Congress:

It was a coda, a tying up of loose ends, for something that Congress had actually enacted, and thus arguably a legitimate part of executing the law — which is, after all, the function of the executive. Obama’s threatened move, on the other hand, is directly contrary to Congress’s decision not to pass an amnesty. In effect, Bush was saying “Congress has acted and I’m doing my best to implement its directives,” while Obama is saying “Congress has not done my bidding, so I’m going to implement my own directives.”

But a tidying up can mean many things. In this case, it meant giving a reprieve from deportation that the law did not itself contain. Yes, it was subsequently superseded by the 1990 law – but that indicates to me that it needed a law to make it more than an executive decision. And yet that executive action nonetheless went ahead.

It seems pretty clear to me that Obama may not be as out on a limb as some Republicans are claiming – but that he is pushing his luck in ways that, as I’ve argued before, are likely to hurt him and even the cause he seeks. He could make immigration a political liability for Democrats rather than for Republicans; or at the very least be credibly described as an initiator of partisan conflict, with unforeseen consequences. If I were advising POTUS, I’d urge that he use this threat as a way to negotiate an expeditious immigration reform bill. If that fails, by all means blame the Republicans. But it would be an act of great recklessness – both for his future and his legacy – to press ahead regardless.