Band-Aid fixes
Executive actions to address immigration are no replacement for congressional action.
Prosecutorial discretion is a device that can help the justice system work more effectively, as resources are directed to manage society’s worst criminals. Locally, a proposal drawing bipartisan support would set up a diversion court to keep low-level, nonviolent offenders out of the crowded Harris County Jail.
What President Barack Obama has done with his executive actions on immigration are no different. His actions, one allowing limited legal status to eligible young people who illegally entered the U.S. before age 16 and another temporarily offering limited regularized status — but no path to citizenship — to certain immigrant parents, are, like the legal status conferred, only temporary. Popularly known as DACA (Deferred Action for Childhood Arrivals) and DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents), the programs were the subject of Supreme Court oral arguments last week on Obama’s exercise of prosecutorial discretion in the area of immigration policy. As we await a solution from Congress that hasn’t budged on immigration reform, Obama’s actions not only are proper, they were urgently needed.
Like presidents before him, including Presidents Ronald Reagan and George H.W. Bush, Obama has adopted immigration enforcement policies that focus resources on criminals and other dangerous people and allow those who have no criminal record but who are in the U.S. without authorization to stay here and work if they meet certain requirements.
The programs are intended to allow more than 4 million unauthorized immigrants who are the parents of citizens or lawful permanent residents to apply for a program that allows them to work here, without fear of deportation. The programs do not put immigrants on a pathway to permanent residency or citizenship. Applicants are subject to removal proceedings at any time the executive branch changes its enforcement priorities. These programs aren’t new laws. They are more on the order of bulletins announcing the administration’s enforcement priorities.
The state of Texas along with 25 Republican-dominated states are challenging the executive orders issued by the president on a variety of grounds, including failure to follow the required procedures in adopting new regulations. The states also make the more serious charge that the president is violating the Constitution by failing to “take care” to faithfully execute the immigration laws that Congress has enacted.
This constitutional challenge is not persuasive. The idea that the president can refrain from enforcing a law is fundamental to “the separation of powers” clause of the Constitution. To protect us from the overreach of the federal government, the Founders provided that any coercive action must be authorized by Congress and enforced by the executive branch. Furthermore, as Congress has failed to provide the necessary funding, Obama’s administration does not have the resources to fully enforce U.S. immigration laws and ensure the deportation of all those who are here illegally. “So inevitably priorities have to be set,” Supreme Court Justice Ruth Bader Ginsburg pointed out in the oral argument.
The Supreme Court has many options. Among them: It could decide that the president didn’t follow all the rules in issuing the executive order — which would delay things. Or it could rule that the executive orders are unconstitutional, which would invalidate the orders. It could rule that Texas does not have standing to sue, which would leave the executive orders in place. Or it could act to affirm these executive orders and at least put a BandAid on our broken system.
Government by executive action is not an efficient practice; it’s subjective and vulnerable to abuse. But years of inaction and failure to pass immigration reform have placed lives in limbo, promoted unnecessary litigation and created the leadership vacuum into which Obama stepped with this expansive executive action. The responsibility for the state of affairs rests squarely on Congress. Whatever the Supreme Court ruling may be, the mess is still for Congress to fix.
The programs are intended to allow more than 4 million unauthorized immigrants who are the parents of citizens or lawful permanent residents to apply for a program that allows them to work here, without fear of deportation.