In his post-midterm press conference today, President Barack Obama reaffirmed his commitment to taking executive action on immigration, “before the end of the year.” Obama argued that most Americans desire reform and consequently he has an imperative to act. Because, as everyone knows, polls, rather than elections, are by far the best measurement of what the electorate desires.
If Obama moves forward a number of things are bound to happen: First, and most definitely, there will be no way Republican leadership can engage the administration in any meaningful bipartisan legislation for the next two years. With a freshly enraged base, the GOP will be powerless to work with the White House unless it’s willing to risk civil war. Second, kicking off a new round of needless acrimony highlights the fiction that Obama has any intention of recalibrating his strategy and finding common ground moving forward.
More consequentially, though, Obama has basically admitted again that he believes the president–if he’s passionate enough about a certain issue— is free to craft legislation. And by consistently equating his forthcoming executive action with bills passed by Congress, Obama acknowledges the purpose of his unilateral moves is to enact new policies or pressure Republicans into giving him what he wants. Which is a big problem if you care about the Constitution.
And, you know, I think that the best way, if folks are serious about getting immigration reform done, is going ahead and passing a bill and getting it to my desk. And then the executive actions that I take go away. They’re superseded by the law that is passed. And I will engage any member of Congress who’s interested in this in how we can shape legislation that will be a significant improvement over the existing system.
Who knew it was Congress’s role to pass laws so that they could supersede the actions of the executive branch? Is that how this works? The president’s legal basis for moving forward on immigration rests on prosecutorial discretion – which will be liberally defined, no doubt. This could include deferring deportations of illegal immigrants or unilaterally granting them work authorizations – but it will almost certainly create some new form of amnesty, in the purest sense of the word, for illegal immigrants.
I certainly don’t fancy myself a legal scholar, but there is almost no doubt this would plunge DC into both political and legal crisis. Which might very well be the point. The White House does best when it finds new ways to vilify conservatives. Immigration is a perfect way to initiate the fight. Perhaps this is a fight it wants. Then again, that plan could backfire, as even those of us who believe immigration reform would be beneficial might find the autocratic instincts of the president more off-putting than the status quo. It’s not difficult to imagine that large numbers of moderates and independents may find the idea of the president simply altering the status of millions of people through executive fiat may not work out for Democrats. But I suspect we’re going to find out.