An Executive Order or New Legislation?


The Secretary’s first recommendation failed to contain any provision to shield undocumented aliens from deportation or grant them work permits. In line with the standard legal theory behind executive orders Homeland Security called for an order that would have sharpened the guidance for immigration agents. I think the meetings at the agency had produced a well-reasoned point of view that President Obama had severe limitations on what he could do. As the Obama administration has demonstrated time and time again politics often triumphs over the rule of law. The President only wanted Homeland Security to rubber stamp his action and give his contemplated action legal weight.

President Obama’s sweeping immigration order is now history. What do Americans think about it? A recent completed CNN poll indicates that a majority of American favor immigration reform. Yet this same majority believes that President did not have the authority to act unilaterally in this respect. Of course those who will benefit the most by the President’s order overwhelming believe that he had the authority to take the action that he did.

There is large number of undocumented non-Hispanics and some Hispanics who are not happy with what they see as preferential treatment for undocumented Mexicans. These nationals of Mexico have benefited from entering the country illegally and having what anti-immigration advocates have termed as “anchor babies.” Also unhappy with the President’s action are the thousands of people waiting patiently to immigrate legally to the United States. They see the President’s action as favoring law breakers over them while they are playing by the rules. In general the surveys find that people in large urban areas generally support the President’s actions. People living in the suburbs generally look upon the executive with great apprehension.

Consequently I think the President will face a growing backlash from those who are deserving of favorable immigration treatment but whose status has not been altered by his recent actions. A vexing dilemma has popped up for the President; he now must pay the price of not working harder for a bipartisan solution to the immigration problem.

I do not see the Republican led congress or, for that matter, a majority of Americans rushing to bail President Obama out of this dilemma. The President’s own words resonate loudly against this. He said  that he had to act alone because Congress had failed to do anything. Bipartisan support for his initiative was not something he wanted, especially after the Democrats took a beating in the mid-term elections. Even Democrats will think twice before they risk their political lives on helping a lame duck and unpopular president resolve this dilemma.

It has been suggested by some that the President’s action is gift to Republicans. The thinking goes that future Presidents could also use these broad interpretation of Executive power to make sweeping unilateral changes. The thinking goes that a Republican president could by executive action enact sweeping law with the stroke of a pen. I think both major political parties should hesitate in upsetting the balance of power that has sustained America as a great democracy.

I do not think that legal challenges to the President’s executive order will be successful. Even if a challenge did succeed its legal consequences might not alter by much the status of those most affected by the President’s order. The soon to be Republican led congress faces intense political lobbying for immigration reform from all sides of the political spectrum. Crafting an acceptable solution that all sides can live with might be impossible. It seems like Congress will have to come up with an immigration package that will satisfy some and enrage others. Maybe no one wins when it comes to immigration reform.

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