Reagan and Bush acted in conjunction with Congress and in furtherance of a congressional purpose. In 1986, Congress passed a full-blown amnesty, the Simpson-Mazzoli Act, conferring residency rights on some 3 million people. Simpson-Mazzoli was sold as a “once and for all” solution to the illegal immigration problem: amnesty now, to be followed by strict enforcement in future. Precisely because of their ambition, the statute’s authors were confounded when their broad law generated some unanticipated hard cases. The hardest were those in which some members of a single family qualified for amnesty, while others did not. Nobody wanted to deport the still-illegal husband of a newly legalized wife. Reagan’s (relatively small) and Bush’s (rather larger) executive actions tidied up these anomalies. Although Simpson-Mazzoli itself had been controversial, neither of these follow-ups was.
Executive action by President Obama, however, would follow not an act of Congress but a prior executive action of his own: his suspension of enforcement against so-called Dreamers in June 2012. A new order would not further a congressional purpose. It is intended to overpower and overmaster a recalcitrant Congress.
What both Frum and Krikorian’s analyses fail to explain is how Obama’s planned action is not a faithful attempt at executing the law. You can’t argue that Obama’s “order would not further a congressional purpose” without explaining what Congress’s purposes are in passing immigration laws. This error isn’t unique to Frum or Krikorian: Conservatives often fail to use a legal framework in analyzing Obama’s action. … Bush and Reagan’s actions were legally acceptable for the same reason Obama’s would be: ensuring that our immigration policy is fair.
Gabriel Malor pushes back on Vinik:
Obama, in contrast to Reagan and Bush 41, is not trying to implement a lawfully created amnesty. There has been no congressional amnesty. In fact, there has been no immigration action from Congress in the past few years except the post-9/11 REAL ID Act of 2005, which made it harder, not easier, for aliens to qualify for immigration relief. More than that, Congress declined to pass a legalization of the type Obama is issuing during both Obama’s term and in a hotly-contested bill during President Bush 43′s term.
Thus, Obama is clearly contravening both ordinary practice and the wishes of Congress—as expressed in statute—by declaring an amnesty himself. This is nothing like Reagan’s or Bush’s attempts to implement Congress’ amnesty.
Beutler is unimpressed by such arguments:
Republican presidents can, and will again, avoid enforcing environmental regulations. If Republicans identified a serious legal basis for selectively enforcing the estate tax, they could go ahead and do it. It would infuriate liberals just as weak environmental enforcement infuriates liberals. And it would be incumbent on the norms police to show that the discretion that exists in immigration law also exists in tax law. But it wouldn’t add up to a new method of politics.
It could pass legislation terminating the grant of work authorization to this population. It could use its power of the purse to prevent the Department of Homeland Security from expending funds to give the beneficiary class employment authorization documents. Ultimately, only Congress can decide the permanent legal fate of undocumented immigrants receiving the temporary immigration benefits that Obama is considering now. This happened, for example, when President Jimmy Carter in 1980 blessed the legal entry of certain Cubans and Haitians who arrived during the Mariel Boatlift. But these individuals did not obtain the right to permanently stay in the country until Congress acted to recognize these rights for those in this group without disqualifying criminal records.
In short, the immigration debate is primarily a question of politics and policy, not law. The president must act within certain legal parameters, but he apparently will do so. Congress has many legal tools to respond to his actions.
And Francis Wilkinson fears DC will only get more dysfunctional:
If Obama is not departing from norms in this case, he certainly looks to be pushing the line. With a functioning Congress, large changes to immigration would rightly be the legislature’s prerogative. Of course, we don’t have a functioning Congress, and we do have millions of people living in limbo. It’s not hard to understand why Obama is doing this, and perhaps party relations in Washington really can’t get much worse. But I think they will.