IN the months since President Obama first seem poised — as he now seems
poised again — to issue a sweeping executive amnesty for millions of
illegal immigrants, we’ve learned two important things about how this
administration approaches its constitutional obligations.
First, we now have a clear sense of the legal arguments that will be
used to justify the kind of move Obama himself previously described as
a betrayal of our political order. They are, as expected, lawyerly in
the worst sense, persuasive only if abstracted from any sense of
precedent or proportion or political normality.
This
is where the administration has entered extraordinarily brazen
territory, since part of its original case for taking these steps was
that they supposedly serve the public will, which only yahoos and
congressional Republicans oppose.
This argument was specious before; now it looks ridiculous .... there
is no public will at work here. There is only the will to power of this
White House.
Second, we now have a clearer sense of just how anti-democratically
this president may be willing to proceed.
The legal issues first. The White House’s case is straightforward: It
has “prosecutorial discretion” in which illegal immigrants it deports,
it has precedent-grounded power to protect particular groups from
deportation, and it has statutory authority to grant work permits to
those protected. Therefore, there can be no legal bar to applying
discretion, granting protections and issuing work permits to roughly
half the illegal-immigrant population.
This argument’s logic, at once consistent and deliberately obtuse,
raises one obvious question: Why stop at half? (Activists are already
asking.) After all, under this theory of what counts as faithfully
executing the law, all that matters is that somebody, somewhere, is
being deported; anyone and everyone else can be allowed to work and
stay. So the president could “temporarily” legalize 99.9 percent of
illegal immigrants and direct the Border Patrol to hand out work visas
to every subsequent border crosser, so long as a few thousand aliens
were deported for felonies every year.
The reality is there is no agreed-upon limit to the scope of
prosecutorial discretion in immigration law because no president has
attempted anything remotely like what Obama is contemplating. In past
cases, presidents used the powers he’s invoking to grant work permits
to modest, clearly defined populations facing some obvious impediment
(war, persecution, natural disaster) to returning home. None of those
moves even approached this plan’s scale, none attempted to transform a
major public policy debate, and none were deployed as blackmail against
a Congress unwilling to work the president’s will.
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