President Obama’s executive action on immigration revealed some deep‐seated problems with our immigration laws. They include broad grants of presidential discretion, arbitrary immigration restrictions, and complicated quotas that make a mockery of James Madison’s vision of the Constitution. Obama’s executive actions should be seen as a logical consequence and feature of our immigration laws, not some overreach that shreds them.
Obama’s actions, combined with our dysfunctional immigration laws, hint at a radical solution: scrap the Immigration and Nationality Act altogether and replace it with laws that actually work.
Our immigration laws, written by Congress over the centuries and kludged into the Immigration and Nationality Act in 1952, delegate significant power to the president to defer the deportations of unlawful immigrants, grant some of them temporary work permits, and allow migrants into the country for humanitarian and other purposes.
The laws provide numerous specific statutory avenues by which the President can defer deportations. As the Supreme Court observed in the 2012 case of Arizona v. United States, “[d]iscretion in enforcing immigration laws embraces immediate human concerns” that extend to economic and other humanitarian imperatives.
Even though the president’s actions are likely legal, they do raise troubling constitutional concerns. Congress’ vague and poorly‐written immigration laws grant wide authority to the President. Constitutional law professor Josh Blackman wrote, “in most cases the legislative branch has delegated to the president the sole responsibility to decide what the law should be, how and when to implement it, and even whether to enforce it at all.”
Worse than the delegation of power to the president, our immigration laws are a convoluted maze of gobbledygook. Rutgers law professor Elizabeth Hull wrote that our immigration laws are “second only to the Internal Revenue Code in complexity.” Conservative U.S. appellate lawyer John Elwood, who has argued seven cases before the Supreme Court, wrote , “It’s well known that prolonged exposure to the hyper‐reticulated Immigration and Nationality Act can actually cause your brain to melt.”
Such an inscrutable body of law has several consequences. First, it has produced a thoroughly unjust immigration system that primarily serves to harm immigrants and Americans alike. It shuts out virtually all foreigners who want to come here legally. And it effectively makes broad use of executive authority inevitable.
These problems can only be solved by Congress.
The legal immigration system needs to be available to people of all skill levels, regardless of family ties to the U.S., in numbers large enough to satisfy our economic demand and to disincentivize illegal immigration. Deportation is a harsh punishment that separates families and ruins lives. Those facing deportation need to have the same legal protections as Americans accused of crimes to make sure it is only used against those who deserve that punishment. Immigration enforcement needs to be refocused on legitimate security, criminal, and health threats rather than wasted on obstructing willing workers from working for willing employers.
Finally, our immigration laws need to be simplified to make them intelligible to people who aren’t attorneys. Sufficient complexity impedes justice in a way that leaves most Americans and legislators oblivious to the extent of the problem.
The humanitarian and economic consequences of the president’s executive action are unambiguously positive. Unlawful immigrants who can now secure temporary work permits will be more productive, earn higher wages, and be able to make longer term investments without the specter of deportation hanging over their heads. American employers, investors, and consumers will also benefit from this greater degree of legal certainty. But the economic and humanitarian concerns are not the focus of debate over executive action; the legalities are.
The last major immigration reform act in 1990 was enacted 24 years ago this week — its anniversary almost perfectly coinciding with President Obama’s executive action. Congress is outraged by the president’s use of his power even though they gave him this authority. Instead of tacking on another unwieldy and clunky reform to an already unworkable system, Congress should repeal the Immigration and Nationality Act and replace it with an immigration system that works.