The Legal Authority and Political Consequences of Executive Action on Deportations
In February, Speaker John Boehner (R-OH) slammed the brakes on immigration reform. Last week, President Obama ordered Department of Homeland Security (DHS) to review his options for executive action to reduce deportations. These developments beg the question: if the GOP continues to squander an historic opportunity to enact immigration reform and win credit with the fastest growing groups of voters in America, what could President Obama do administratively, and what would be the political consequences?
In an important new piece in The New Republic, Nora Caplan-Bricker interviews an array of legal scholars:
“Until now, the White House has insisted that it cannot legally slow deportations, which Obama has called tantamount to refusing to enforce the law. Legal experts dismiss that notion. ‘I think there’s little serious question that the administration has broad discretion in almost every aspect of the deportation machine,’ Michael Wishnie of Yale Law School told me. Far harder to wave away are the difficult politics of the situation: Republicans claim their distrust of Obama is already an impediment to reform, and say any executive action would diminish its chances…
Unlike Congress, Obama can’t provide a path to citizenship for any of the 11 million illegal immigrants currently in the U.S.—the most he can grant is a temporary reprieve from deportation, like the two-year ‘deferred action’ he made available to Dreamers in 2012. (The order is called Deferred Action for Childhood Arrivals, or DACA.) If he decides to expand that policy, how far can he go? As Hiroshi Motomura of the UCLA School of Law put it, ‘He would reach political constraints long before he reaches legal ones.’
The clearest legal limit on Obama’s power is the fact that Congress appropriates money for deportations every year, and he has to spend it for that purpose. The White House says this has necessitated that deportations continue apace. But Wishnie points out that a set amount of funding doesn’t need to translate into a set number of arrests. Immigration and Customs Enforcement (ICE) ‘can choose to round up a lot of easy targets with not a lot of resources, or they can dedicate resources to more complicated cases, like drug trafficking,’ he said. Between ‘five drug king pins’ and “the day laborers on the street corner and the nannies in the park… it’s the president’s choice.’
The Republican window to avoid a repeat of the above scenario and to shape the contents of a reform bill is closing rapidly. Here’s what Robert Gittelson, of the National Hispanic Christian Leadership Conference and Conservatives for Comprehensive Immigration Reform, writes in a new op-ed in The Hill entitled, “GOP won’t win White House in 2016 without moving immigration reform in 2014:”
The Republican Party can forget about winning the 2016 Presidential election if they do not make definitive progress in wooing both Hispanic and Asian voters to vote Republican. It is that simple.
Further, if Republicans do not pass immigration reform this year, Democrats will not allow Republicans to pass their conservative version of immigration reform in 2015 or 2016, because they will have no incentive to allow Republicans to do anything that will allow the Republicans to make inroads with immigrant voting blocs heading into the presidential elections.
Therefore, logic dictates that this year, 2014, is the last chance for Republicans to achieve any type of immigration reform that adheres to their more conservative member’s values. If they elect to punt on immigration until next year, their punt will be blocked. There is no chance that the Democrats will do anything in 2015 or 2016 that will allow the Republicans to demonstrate to immigrants that the Republicans care about them.
So, what happens if Republicans fail to move on immigration reform in the coming weeks? The void would be filled not only by the President and executive action – a move likely to be very popular given how unpopular Congressional inaction is – but also by the anti-immigrant wing of the Republican Party. Longtime anti-immigrant crusader and Colorado Gubernatorial hopeful Tom Tancredo offers a preview. Penning a new op-ed for World Net Daily, he says:
Well, amnesty by stealth is…on the rocks, despite Zuckerberg’s millions, the U.S. Chamber of Commerce drumbeat, an avalanche of insulting lectures from the chairman of the Republican National Committee, a continuous stream of propaganda in the mainstream media and stacked pro-amnesty panels at the recent Conservative Political Action Conference….Republicans do indeed need to improve and expand their outreach efforts in Hispanic communities, and they can do so without the baggage of the amnesty debate.
Good luck with that.