By Everard Meade
After months of speculation, President Obama finally announced a sweeping executive action on immigration, which could potentially protect nearly 5 million undocumented immigrants from deportation.
In order to qualify, undocumented immigrants must have been here for more than five years, have children who are U.S. citizens or permanent residents, register, pass a criminal-background check, and pay any back taxes and associated fines they may owe.
As part of the plan, the president also announced that he will send additional law enforcement resources to the border and increase the availability of work visas for high-skilled workers educated in the United States.
But, it’s the deportation relief that will no doubt pique the most passionate response. Indeed, in the lead-up to the president’s announcement Republican lawmakers have threatened a government shutdown, lawsuits, impeachment, and even hinted at violence in the streets should the president provide legal status to undocumented immigrants without Congress acting.
This response is misguided and hypocritical. The President has the legal authority to take the actions he has announced and opponents of this measure have often proposed immigration policies with even greater executive discretion and fewer check and balances.
Like it or not, our immigration system allows for extremely broad discretion on the part of individual officials, including the President.
Any senator or member of Congress can submit a “private immigration bill” granting status to an individual non-citizen or family.
Hundreds of private bills have been submitted over the years, many by opponents of immigration reform. Historically, they’ve often exposed injustices and loopholes in the system, which were subsequently addressed by Congress.
Over the last decade or so, few of these bills have been voted up or down. So long as the bill is resubmitted during each new Congress, the person gets “deferred action” preventing deportation.
The Secretary of Homeland Security can grant various kinds of “parole,” allowing people to avoid deportation for humanitarian reasons, or “Temporary Protected Status” (TPS) to groups of people during wars, natural disasters, and other crises. TPS specifically allows for work authorization in addition to deportation relief.
For his part, the President can designate “refugee status” to up to ten thousand people fleeing a particular conflict or crisis, without legislative action. (He’s supposed to inform Congress, but he doesn’t need its permission).
At a more basic level, in any immigration case, the Attorney General can overrule the immigration courts, including the Board of Immigration Appeals, even when this means getting rid of a long-standing precedent. The Attorney General can also set new precedents and they are not subject to judicial review.
The vast discretion and lack of checks and balances in the immigration system fits poorly into our constitutional framework.
But, until we design a system subjected to the constitutional scrutiny found in our criminal or civil systems, immigration policy will reflect policy priorities over principles.
President Obama is well within his authority to offer a defined group of people temporary protection from deportation.
This doesn’t preclude the Congress enacting a more systematic reform.
To howl about the Constitution, but then propose enforcement policies that are just as arbitrary and discretionary is plain hypocrisy.
The fiercest critics of immigration reform and the president’s executive actions have consistently argued for more, rather than less executive authority over immigration.
Sen. John Cornyn (R-TX), who has accused the president of “poisoning the well” and acting unilaterally, advocated the removal of due process protections for unaccompanied immigrant children last summer, and increased executive discretion to deport them.
Other opponents have tried to restrict judicial review, impose detention quotas, make it more difficult to apply for asylum, all by allowing the executive branch greater authority to act without checks and balances.
The constitutional argument against the president’s actions is a pretext for policy disagreement.
Indeed, by setting clear standards for his use of discretion, the president is helping not just hardworking immigrants but immigration policy itself to “get right with the law.”
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