Legislation By Equivocation, Negotiation By Strangulation, And Other Dumb Ways To Handle Immigration

In the wake of the walloping Democrats received in the midterm elections, President Obama this week foreshadowed the release of a comprehensive ten-point plan for overhauling immigration policy via executive action. The President has long hinted that he would move forward with immigration reform, with or without Congressional cooperation. On Thursday, a White House source leaked details of the plan, which the source says will be finalized as early as November 21.

President Obama’s plan expands “deferred action” of potential deportations, allowing an estimated four to five million adults residing illegally in the United States to remain here. Beneficiaries of deferred action would be authorized to work in the U.S. and granted Social Security numbers and government-issued identification.

The President’s new plan is also supposed to broaden the scope of Obama’s Development, Relief, and Education for Alien Minors program of 2012, i.e., the DREAM Act. Currently, DREAMers are those who illegally entered the country prior to June 2007 and were under the age of 31 as of June 2012. The new plan would cover anyone who entered by January 1, 2010, while under the age of 16. The expanded coverage would apply to an estimated 300,000 individuals.

The plan would also end the “Secure Communities” program and radically revise the removal priorities of Immigration and Customs Enforcement. The Secure Communities program uses information shared by local law enforcement with the FBI to identify for possible deportation those aliens in the country illegally who commit crimes posing a threat to public safety. Only the most serious criminals would face deportation under this new policy, while even lower level felons would be permitted to remain in the United States. (Incidentally, ICE is already implementing lax removal priorities, if what ICE Chief Counsel Patricia Vroom alleges in her 65-page complaint filed against the Secretary of the Department of Homeland Security this week is true.)

How does the President justify this unusually bold exercise of Executive power? After all, how would Democrats react if a Republican president declared that the federal government would no longer pursue a substantial number of EPA violations? So far, the White House has articulated nothing more sophisticated than this: The President thinks that current laws should be changed and Congress won’t change them…

White House Press Secretary Josh Earnest told reporters on Thursday, “If the House does pass the bipartisan Senate bill that’s already passed, the President would happily sign that into law. And if he has already made a decision and moved forward on his own executive actions, he would happily retract those executive actions so that we could implement the bipartisan Senate bill.” When asked later if Earnest was suggesting that the White House doesn’t need Congress in order to act on the President’s policy preferences, Earnest replied:

“The President has indicated that he’s going to use all of the authority that’s vested in the executive branch of the United States to take action that would benefit the American people, the American economy, particularly the American economy for middle-class families. And that’s consistent with something that the President talked about in the aftermath of last week’s election, that during his remaining time in office he’s going to squeeze every ounce of opportunity that he has out of the presidency.”

One way of squeezing is the President’s pledge that he will reform immigration policy if Congress “won’t act.” His phrasing implies that when members of the House voted against the Senate’s 2013 Pathway to Citizenship bill, they were not acting. In truth, however, the President will unilaterally reshape immigration policy if Congress won’t act in the way that the President wants Congress to act. Congress’s behavior does not warrant the Executive Branch acting beyond the scope of its constitutional role of recommending measures to Congress and faithfully executing the laws Congress enacts. Legislators haven’t abdicated power that the President has rightfully scooped up. They’ve just refused to do what Obama wants.

I agree with President Obama that our immigration policy deserves reform. Nevertheless, legislators who scrutinize a proposed set of changes, then conclude that the changes would not improve current law are not shirking their legislative duties. I may disagree with them over, but I can’t inflate my frustration into a claim of constitutional proportions. I get to seethe at the stupidity of Congress. I don’t get to say that Congress is not doing what it is required to do. Likewise, a president doesn’t get to govern around the Legislative Branch by legislating through executive action. Legislation by equivocation, by semantic manipulation, is not a constitutionally permissible option, regardless of the social policies driving it.

Dissatisfied with Congress’s unwillingness to act, the President has chosen to act unilaterally. Until Congress changes immigration law to reflect the President’s preferences, the Executive will only enforce the portions of current law that it approves of. In effect, President Obama is taking America’s immigration policy hostage, even if his underlying purpose is noble.

One of the justifications for not negotiating with terrorists for the release of hostages is that it incentivizes terrorism. That is, if we give an armed radical a pile of cash or a swath of territory in exchange for a hostage, armed radicals learn that one reliable method for acquiring cash or territory is taking hostages. If Congress gives Obama the sort of immigration policy that he wants in order to avoid a disjunction between law and enforcement of the law, the Executive learns that one reliable method for acquiring its preferred policy is creating a disjunction between law and enforcement of law, i.e., by refusing to enforce current law with which the Executive disagrees. Is it wise for Congress to negotiate with a president who employs Obama’s tactic? If Congress does strike a compromise with the President on immigration policy, will the President only enforce the portions of the compromise that he approves of?

Congress holds the legitimate power to defund the President’s version of immigration enforcement. Congress too can take hostages. There is, however, something self-defeating about members of Congress who want U.S. immigration policy to involve more deportations to give the Executive fewer dollars to put toward deportations. Yes, one could argue that ICE ought to be leaner and more efficient, while still deporting illegal aliens as required by law. That sort of efficiency, though, is unlikely to emerge from political strong-arming. Agencies, like people, work efficiently because they want to work efficiently. If someone gives you fewer resources to do what you don’t want to do in the first place, you just do less. And if Republicans in Congress constrict the ICE budget so tightly that ICE chokes, forcing shutdowns of whatever size? Negotiation by strangulation may be constitutionally permissible, but it is unwise, to say the least.

A wise president and a wise Congress know that their choices of how to handle the next steps in the immigration policy debate will set precedents for how future American leaders divide power and settle disagreements in our constitutional system. They know that they won’t always be the ones occupying their current roles. Next week will the American people will get to see just how wise our current leaders are . . . and we may not like what we see.

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Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She currently heads the Center for Legal Pedagogy at Texas Southern University, an institute applying cognitive science to improvements in legal education. You can reach her at [email protected].