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The Real Radical Option on Immigration Policy: Doing Nothing

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Affront to Democracy is House GOP Refusal to Bring 11 Million People Under Rule of Law, Not President Using Existing Legal Authority

Yesterday, we highlighted analysis from a range of legal experts and observers who agree that President Obama has broad authority to act on immigration.  If you read only one piece on this, it has to be the in-depth interview between the Washington Post’s Greg Sargent and two immigration legal experts – John Sandweg, who was acting general counsel at the Department of Homeland Security during the announcement and launch of DACA, and David Leopold, past president of the American Immigration Lawyers Association (AILA).

Below, we highlight some additional analysis from commentators and experts.  They do an excellent job of describing how the President is planning to use existing authority to implement current law rather than, as critics claim, overreach and somehow change current law:

  • Ed Kilgore of Washington Monthly, “Why DACA Isn’t An Unconstitutional ‘Power Grab’”:  Kilgore writes, “The most important thing to understand is the vast gap between the number of undocumented people in this country and the federal government’s resources for detecting, arresting, prosecuting and deporting them.  ‘Prosecutorial discretion’ is not simply a convenience, it’s essential.  DACA guides that discretion, and so would any DACA expansion.  Beneficiaries, existing and prospective, do not receive any formal ‘legalization,’ but simply a temporary assurance enabling them to function and to work.  And any such assurance could be instantly rescinded, by this or future presidents…Even a very large expansion would leave many millions of the undocumented subject to prosecution and deportation far beyond the resources of the federal government.  Discretion would still have to be used.  Unless the claim is that it’s necessary to keep millions of people in perpetual suspense so that are more likely to ‘self-deport,’ leaving the status quo in place is a policy decision just like any that Obama might make.  His congressional critics could, of course, get serious about appropriating the many tens of billions of dollars that a universal or near-universal deportation stance would require.  But they haven’t, have they?  Action or inaction by Obama in the absence of congressional activity is a policy decision with very large implications.  He cannot escape it, and the status quo is hardly managable, as we supposedly all agree.”
  • Brian Beutler of The New Republic, “Claiming ‘Obama Is Caesar’ Is Sexier Than Saying ‘Steve King Is Right’”: Beutler deconstructs some of the conservative arguments against potential executive action, especially New York Times columnist Ross Douthat’s stated objections, and makes an important distinction between norms and legal authorities.  Beutler writes, “If it is legal, then Douthat must retreat to his procedural objection—that, legal or not, protecting up to half the undocumented population from deportation would constitute a dangerous erosion of norms.  But if upholding norms is his concern, then he can’t just tiptoe away from the collapsed norms that created the foundation for broad deportation relief.  Congress could address the over-reach problem either by passing immigration reform, or by explicitly forbidding programs like DACA.  To the dismay of Democrats, Congress won’t do the former.  To the dismay of Representative Steve King and other House Republicans, Congress won’t do the latter, either.  But that just means Congress is leaving the matter in the president’s hands.  Clearly Douthat would prefer it if Congress tied those hands.  But a column urging the Senate to pass Steve King’s plan to end DACA wouldn’t have been as tantalizing as one warning that the specter of Caesarism is haunting America.”
  • Marielena Hincapié of the National Immigration Law Center (NILC) appearing on MSNBC’s “Last Word with Lawrence O’Donnell” program: Hincapié offered an overview of the president’s broad legal authority in an accessible manner and made the case for why President Obama should use his existing authority to expand DACA. 

According to Frank Sharry, Executive Director of America’s Voice:

The case for the President using existing authority to target law enforcement resources is on very solid ground.  The real radical option on immigration policy is the way the Republican House of Representatives insists on maintaining the status quo – a policy of deportations only – in spite of the fact that three quarters of the American people support legal status for the 11 million undocumented immigrants settled in America, and the votes exist in the House of Representatives to pass comprehensive immigration reform.  Those who object can do so on policy and political grounds, but the argument that he is rewriting law is patently false.

Among the key assessments today: