Is Obama's Unilateral Action on Immigration Legal?
Legal experts and constitutional scholars remain divided over the legality of President Obama's decision to use executive action to grant millions of undocumented workers reprieve from deportation. The president will detail how immigrants who mostly live and work in the shadows can work legally without the fear of deportation. Among the president's expected key changes in immigration policy will be protecting the undocumented parents of American-born children from deportation. Other groups like people holding high-skilled degrees and people who have lived in the US for more than five years and have no criminal record will also be included in President Obama's executive action.
Mark Rozell, the acting dean and professor of public policy at George Mason University and an expert on the presidential use of executive action, said Obama is going down a dangerous path.
"Obama's not clarifying existing law as Reagan did, nor using prosecutorial discretion," Rozell said via email. "He's setting national policy. It is a dangerous path to go down because it will destabilize national policy by allowing presidents, depending on their party affiliation, to change policy through executive orders without Congress."
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Rozell, the author of Executive Privilege: Presidential Power, Secrecy and Accountability has also criticized former president George Walker Bush on his use of executive power.
"I don't care if it's a Democrat or a Republican," Rozell told The Christian Post in 2012, "if the president is wrong he's wrong."
Ruth Marcus, a Harvard Law School graduate and a liberal columnist, echoes Rozell's point. She writes that she is troubled by the president's decision because it sets precedents for future presidents to enact or enforce policy.
"For me," she writes in Washington Post, "the question is one of double containment: First, is there a limiting principle that would constrain the president's authority to effectively legalize everyone in the country? Second, is there a limiting principle that would constrain future presidents inclined against enforcing other laws with which they don't agree ─ and on which they've been unable to convince Congress to act accordingly?"
Apart from scholars, other people have weighed in on Obama's decision to act on immigration without Congress. House Speaker John Boehner's spokesperson, Michael Steel, said Obama's plan will "cement his legacy of lawlessness and ruin the chances for congressional action on this issue." Charles Krauthammer, a prominent conservative columnist and commentator, said Obama was like a leader of a Banana Republic, a pejorative name for a politically unstable country where leaders make selfish and whimsical decisions.
Other experts on the U.S. Constitution, however, have supported the president's choice not to wait for lawmakers. George Edwards, the Jordan Chair in Presidential Studies at Texas A&M University, said anyone in authority, whether a local police force or the president, holds discretionary power over how to implement the rules they are entrusted to enforce, and that is exactly what the president is doing.
"He is using administrative discretion," Edwards told The Christian Post. "In every organization, leaders exercise discretion; whether or not it is too much is for the courts to decide."
Edwards added while the Latino population will be happy with the president, Republicans may not be as pleased, but there was no other way because Congress had "refused to make a deal" with the president. The author said he expected the effects of President Obama's move to be longstanding once implemented.
"I doubt anyone will come and say 'those of you who have paid taxes and are working legally and living in the U.S., we are going to deport you now' after Obama leaves office," he predicted.
An estimated 11 million undocumented people live and work illegally in the U.S. This number tends to fluctuate depending on the organization counting. The president's move to stop the deportation of some immigrants comes after a bruising battle with Congress. In June of 2013, Senate passed a bipartisan bill with 68 to 32 votes for immigration which stalled in the House of Representatives.
In June 2012, President Obama used his executive powers to stop the deportations of people who came to the U.S. as minors. Under the Deferred Action for Childhood Arrivals, or DACA, younger immigrants who came to the U.S. before they turned 16 and stayed continuously for the last five years and were enrolled in school were allowed to apply for a two-year renewable reprieve from deportation.
