The Supreme Court’s non‐ruling that left in place the lower courts’ injunction against President Barack Obama’s executive actions on immigration should’ve come as no surprise to anyone who followed this case or read the oral argument transcript. The Department of Homeland Security claimed unprecedented discretion not just regarding enforcement priorities — the twenty‐six‐state plaintiffs didn’t challenge that — but, as U.S. District Judge Andrew Hanen wrote back in February 2015, also to pursue the “affirmative action” of granting benefits to a large class of illegal immigrants. The president himself had boasted that he “took an action to change the law,” contradicting his earlier protestations that he’s not a king and undermining the government’s argument that this was all mere policy guidance. That we came one vote from ratifying this royal lawmaking — not Merrick Garland’s; he wouldn’t have been confirmed in time to hear the case and it’s disingenuous for the president to claim otherwise — speaks volumes to how ends‐justify‐the‐means the White House’s supporters are.
But regardless of what anyone thinks about the four‐four denouement, the administration’s maneuvers represent an unfortunate setback for those who seek lasting immigration reform.
That may seem counterintuitive. Isn’t it better to do something, to at least get relief for four 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, even if it hadn’t been stopped by the judiciary, could’ve been reversed by any future executive. While it would’ve been hard to claw back whatever tangible benefits were extended in the meantime — or the money states would’ve been forced to spend on driver’s licenses and other benefits — there was never any guarantee that the granted residence and work permits would be renewed.
In other words, the people who would’ve been eligible for temporary status under the Deferred Action for Parents of American Citizens and Lawful Permanent Residents (DAPA) may have moved “out of the shadows” but they’d still have been 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 is also now blocked) have registered for that program: why make it easier for the government to deport you in the future?
Second, and more significantly, President Obama short‐circuited any chance at a legislative solution — for a Hillary Clinton administration as well. There’s a reason that we’ve all heard how the president has “poisoned the well.” By resorting to executive actions — right after the GOP won a midterm election running against just that style of governance — Obama ensures that Congress will never see anyone associated with him as an honest broker.
While it’s true that it’s difficult for a president to get any significant legislation through a Congress run by the other party, Obama didn’t even try to do anything on immigration when Democrats controlled both houses. (Indeed, the well was poisoned then, when he rammed through Obamacare and Dodd‐Frank.) And there are certainly reforms that would have gained majorities had Obama not acted as he did, such as expanding high‐tech visas and employment‐based green cards. Even a larger reform that would’ve given legal status to those here illegally was possible, turning mainly on the scope of a guest‐worker program and restricting the “pathway to citizenship.”
In short, President Obama picked a political fight that mired immigration reform in uncertain and ultimately fatal litigation instead of pushing for real change. Reformers are now worse off than they were two years ago, for having lost time and opportunity.
It’s all so unfortunate, because everybody knows that our immigration system is a mess, quite possibly the worst part of the federal government.
That’s quite a statement, I know — particularly coming from someone at the Cato Institute, and especially from a constitutional lawyer who’s spent significant time and energy battling Obamacare. But it’s true: far from merely advancing bad policy, our current immigration system lacks any coherent policy that it purports to implement. It’s a compilation of various half‐baked “reforms” going back decades, a schizophrenic set of laws and regulations.
And the solution is straightforward: Expand the ways to be here legally, then crack down on those who ignore them. If you commit a crime, or go too long without a job, you lose your visa. But give people a chance to earn an honest living. As long as we screen for criminal records, terrorism, and public health, America should stand for the idea of letting people in who seek a better life, in an orderly way: a funnel, not a necessarily leaky wall.
I say this as an immigrant myself, who could be expected to be least sympathetic to those who came here illegally. After all, I navigated the bureaucratic morass — finally became a citizen two years ago after living here my entire adult life — so why shouldn’t everyone? Why should we “amnesty” people, even legislatively, who didn’t play by the rules I painstakingly followed?
That answer is also simple: I care about my new country and about giving people the opportunity I got only through some rather fortuitous twists of fate. And I also care about the rule of law, one of the reasons people want to come here in the first place. That’s why it saddens me that President Obama’s executive actions are so beyond the constitutional pale that Saturday Night Live parodies them as violating the Schoolhouse Rock instruction on “how a bill becomes a law.”
The fact that DACA and DAPA have stymied chances for legislative reform is doubly sad because our immigration laws themselves undermine the rule of law. If you brainstormed a process for how foreigners enter the country, how long they can stay, and what they can do while here, it would be hard to come up with something worse than our current hodge‐podge of often contradictory rules. This immigration non‐policy serves nobody’s interest — not big business or small, not the rich or the poor, not the economy or national security, and certainly not the average taxpayer — except perhaps bureaucrats and immigration lawyers.
The rule of law means changing the laws we now have rather than paying lip service to the idea that we should spend a trillion dollars enforcing them. Creating a line for people to get into — skilled and unskilled — isn’t “amnesty” but “parole.” That’s why President Reagan’s 1986 reform failed: not because we didn’t combine an amnesty with border enforcement, but because we didn’t follow the parole we granted with a workable line (or funnel) for future immigrants.
Alas, this administration has never been willing to spend political capital on immigration reform — unlike President George W. Bush, who came very close to attaining that elusive goal. Given how little trust President Obama now inspires, and the culpability he therefore shares for giving rise to “burn it all down” populisms of the left and right, it’s clear that this challenge falls to a successor. I had long thought that there would be a Nixon‐to‐China moment, with a President Cruz or Walker (or whomever conservatives trust) working with Congress to finally pass comprehensive reform. That moment may now have to wait at least four years.
In the meantime, immigration activists did themselves no favors by claiming that an obvious violation of both administrative and immigration law helps those whom they purport to represent. United States v. Texas was not a case about the merits of immigration reform or whether we as a nation accept immigrants. That President Obama couldn’t resist making the demagogic claim that it was is indicative of the seriousness with which he didn’t take the Constitution’s separation of powers — to the detriment of law and policy alike.