That may seem counterintuitive. Isn’t it better to do something, to at least get relief for up to 5 million people and worry about a larger fix when the political winds are more favorable?
The answer is “no” for two big reasons. First, the “executive discretion” at issue can be reversed by any future executive. While it would be hard to claw back whatever tangible benefits will have been extended in the meantime—or the money states spend issuing drivers licenses, which is why the temporary injunction prevents “irreparable harm”—there’s no guarantee that the granted residence and work permits will be renewed.
In other words, the millions who would be eligible for temporary status under the Deferred Action for Parents of American Citizens and Lawful Permanent Residents may move “out of the shadows,” but they’re still under a legal cloud. Perhaps that’s why an underwhelming number of those eligible for the earlier Deferred Action for Childhood Arrivals (DACA, the expansion of which was also put on hold by Judge Hanen’s ruling) have registered for that program. Why make it easier for the government to deport you in the future?
Second, and more significantly, Obama has short‐circuited any chance at a legislative solution. There’s a reason that we’ve all heard how the president has “poisoned the well.” By resorting to executive actions—right after the Republicans won the election running against just that style of governance—Obama ensures that Congress will never see him as an honest broker (and that includes any Democrats who remember their position on presidential unilateralism in the Bush years).
Moreover, while it’s true that it would be difficult for this president to get anylegislation through this Congress, he didn’t even try when his party controlled both chambers. And there are certainly reforms that would have easily gained majorities in the new Congress had Obama not acted as he did, such as expanding high‐tech visas and employment‐based green cards. Even a comprehensive reform that would give legal status to those here illegally was possible, turning mainly on the scope of a guest‐worker program and the “pathway to citizenship.”