Well, there’s pretty much one thing in the news this week – immigration. (Okay, two things, but we’ll tackle Ferguson in another post, if need be.) This is one of those national issues that everyone cares about, including Hoosiers, which is why I’m covering it here.
First, let me get this out of the way. I’m not going to parse the President’s speech. What he said does match up pretty well with his legal authority, but it was surrounded by a bunch of political platitudes that are legally irrelevant. Nor am I going to argue his proposals are good or bad policy. I’m just going to describe legally what he actually has the authority to do on his own.
Legally, it’s his responsibility to see that the laws are “faithfully executed.” (U.S. Const. Art. 2 Sec. 3.) In doing so, however, it’s also his responsibility to determine how best to do that. In the real world, what this comes down to is a question of priorities. It’s not physically possible to find, arrest and deport every illegal alien. It’s not physically possible to stop everyone who crosses the border. Therefore, it is incumbent upon the President to decide where best to put our limited resources to faithfully execute the terms and intent of our immigration law to the best of his ability.
Obama has set specific criteria in place, and if one meets those criteria, Immigration and Customs Enforcement (ICE) will leave them alone. For him to set bright line determinations might be uncomfortable for some, but what it actually boils down to is this: we can’t deport everyone, so here is how we are now going to decide whom to deport.
The actions he has proposed, therefore, are almost certainly legal. I say almost only because this isn’t an issue that has been fully litigated yet. But, if I had to guess, should someone challenge this order in the Court, the justices would tell them this is a political question, which means it is non-justiciable and must be resolved by the President and Congress (i.e., through mutual disdain and media blitzes or impeachment proceedings).
Now, going along with that, let’s talk about what Obama cannot do. These are all things he alluded to in his speech, but he was often vague, for obvious political reasons.
First, Obama cannot make illegals into citizens. Only Congress can set rules for citizenship.
Second, Obama cannot take away their status as illegal. He can promise not to deport them, but the next President can come in and reverse his order on Day One. The promise of safety for them only lasts as long as Obama remains in office. They are still here illegally, and that won’t change.
Third, he cannot bind the courts. This is related to the second. Obama may have the authority to tell ICE not to begin deportation proceedings against certain classes of people, but he does not have the authority to tell immigration judges not to order them deported (whether he can then tell officials to ignore a lawful deportation order is a whole different bag of chips, one I hope we don’t have to open). This might seem like a merely academic point, and it is, but it’s an important one, because it highlights once again the fact that this quasi-legal status he is offering is quite tenuous, and extends only insofar as ICE agents follow his directive.
Long story short, regardless of the hoopla, Obama’s immigration reform actions do not go nearly as far as they have been portrayed to do in the media. This is not amnesty by any means. It is the promise of one man who is currently in charge of ICE that he’ll leave certain people alone, a promise that disappears the minute he leaves office, or even if he himself, at his own whim, decides to remove it.