Last week, Douthat provoked a conversation about Obama potentially legalizing millions of undocumented immigrants with an executive order. Chait is uncomfortable with Obama’s plan:
I fully support Obama’s immigration policy goals. But the defenses of Obama’s methods seem weak and short-sighted. To imagine how this method might be dangerous, you have to abstract it away from the specific end it advances and consider another administration using similar methods for policies liberals might not like. What if a Republican president announced that he would stop enforcing the payment of estate taxes? Or suspend enforcement of regulations on industrial pollution? Or laws on workplace discrimination against gays and lesbians? …
The Linzian nightmare that seized many liberals last year is a vision of a political system in which neither the president nor the Congress can share power, and neither recognizes the other’s legitimacy. The extremism of the Republican Party may have precipitated Obama’s confidence in unilateralism. To think that the cycle will end here, and that a future president won’t claim more expansive and disturbing powers to selectively enforce the law, requires an optimism not borne out by history. In the short run, we will rejoice in the sudden deliverance of massive humanitarian relief to people who have done nothing more than try to create a better life for their families. In the long run, we may look back on it with regret.
But Jonathan Cohn doesn’t worry much about Obama’s potential executive actions because a Republican president could reverse them:
I totally get the underlying concern here. The limits of presidential power matter and smart, reasonable people can disagree about what they should be. But here’s one fact to remember: Any action Obama takes will, by definition, lack the permanence of legislation. President Ted Cruz could undo it on January 20, 2017. He might not want to do that, for all sorts of political and practical reasons. But he or any other Obama successor would have the same kind of unilateral authority to act that Obama does. And reversing an executive order is a heck of a lot easier than trying to undo legislation—which, after all, requires new legislation, which in turn means pushing a new bill through both houses of Congress and getting a presidential signature.
On the legal merits, Eric Posner continues to insist that Obama can act to halt deportations:
When government agencies decide which types of corporate or tax fraud to investigate, and which types to ignore, they exercise executive discretion, as they do when they decide whether to shut down an undercapitalized bank or a restaurant that has served food that gives someone a stomachache. This is why a crusading prosecutor, like New York’s Eliot Spitzer in his time, can decide to crack down on a type of conduct—insider trading, accounting fraud, whatever—that had previously been winked at. We live surrounded by “domestic Caesars.”
All of this goes double for immigration law. The president’s authority over this arena is even greater than his authority over other areas of the law. For decades, presidents of both parties have deferred legal action against millions of people who entered the country unlawfully. As the immigration law experts Adam Cox of New York University School of Law and Cristina Rodriguez of Yale Law School have described in a paper, this has been going on at least since the 1940s.
Steinglass sees the “threat to the rule of law here comes mainly from America’s unrealistic immigration policies”:
The country is a very rich, well-governed country that shares a 3,000-kilometre-long border with a much poorer, badly governed one, which in turn borders countries that are poorer still. Until Central America becomes stable and prosperous, it will continue to send millions of emigrants to the US. Current immigration quotas, which date from 1990, limit each country to no more than 7% of the total of 700,000 legal immigrant visas each year; in principle, Mexico is treated the same as Switzerland. Enforcing this skewed system requires America to constantly raise the already large sums it spends on patrolling the Mexican border; in 2012 America spent $11.7 billion on border security. Fully sealing the border could cost $28 billion per year. The American public (let alone the Republican party) has shown no willingness to appropriate that much money. Deportations rose from 70,000 in 1996 to 419,000 in 2012, with the Obama administration deporting as many people in its first five years as the Bush administration did in eight. Yet this has made no dent in the total population of undocumented immigrants. And the current level of deportation seems to be politically unsustainable. Latino constituents are increasingly fed up.
He goes on to argue that “Republican inability to articulate any coherent immigration policy other than “deport them all” amounts to a preference for fantasy over reality, rather than engaging in the messy job of making policy for the real world.” But Reihan thinks Congressional gridlock is good, in that it serves as a check on government actions that lack public support:
The House of Representatives was designed to be the part of Congress that is most responsive to popular opinion. It’s not at all obvious that members of the House are failing in their constitutional obligations when they are resisting a legislative proposal—even one backed by every significant business lobby under the sun, Michael Bloomberg, Mark Zuckerberg, and other enlightened billionaires—that increases immigration levels when doing so is extremely unpopular.
However, Yglesias points out that by obstructing action on this and other issues, the House GOP ends up with less favorable outcomes:
Regardless of your views on what should happen with the unauthorized population, a compromise is strictly preferable to letting immigration authorities flail away at the situation just as a compromise was strictly preferable to letting the EPA handle climate change without congressional input.
Yet at this point, blindly choosing the worse outcome over the better one has become such an ingrained habit for the ideological right that it barely seems to have been considered. Instead, immigration restrictionists waged a vigorous intra-party war against the supporters of comprehensive immigration reform. They sought to prevent a sell-out, and did so utterly without regard to whether blocking comprehensive reform would actually lead to an outcome they prefer.