The Republican outrage at President Barack Obama’s announced intent to issue an immigration executive order is, well, just that — outrageous. It denies the constitutional authority and duty of presidents to exercise executive powers and is premature until it’s known what the executive order contains.
Incoming Senate majority leader Mitch McConnell said an Obama executive order on immigration would be comparable to “waving a red flag in front of a bull.” Displaying an angry demeanor, House Speaker John Boehner charged the president with “playing with matches” and warned Republicans will fight him “tooth and nails” on immigration.
These Republican leaders completely ignore the consistent national polls for more than a year showing 80 percent of Americans support comprehensive immigration reform. The Senate passed such legislation (S. 744) by a strong bipartisan majority in July, 2013. Mr. Boehner has refused even to allow a vote in the House because a majority of Republicans oppose it, although enough of his members would join a strong majority of Democrats to pass the bill.
Mr. Obama has confirmed since the Nov. 4 election he indeed will issue an executive order on immigration prior to the end of the year. It’s believed the order will relate primarily to establishing an order of priority for deporting undocumented immigrants currently in the United States. Because of limited resources and the practical inability to deport all of the estimated 11 million such immigrants, his action will have the effect of deferring deportation of certain classifications of immigrants. In fact, that is exactly what has been happening for decades under all presidents, Republican and Democrats alike.
In the landmark decision of Arizona vs. United States, issued in June, 2012, Justice Kennedy writing for the 5-3 majority stated, “A principal feature of the removal system (of undocumented immigrants) is the broad discretion exercised by immigration officials.” And, further, “The equities of an individual case may turn on many factors, including whether the alien has children born in the United States….” That is precisely a class Mr. Obama is believed to being considering for deferment. Another is young people brought here at an early age by their parents and who have lived here ever since.
Presidential executive orders are supported by constitutional authority and precedence. Every president has issued them: Thomas Jefferson purchased the Louisiana Territory; Abraham Lincoln suspended the right of habeas corpus during the Civil War; Japanese-Americans were interned by FDR early in World War II; President Harry Truman desegregated the armed services; Ronald Reagan prohibited trade with South Africa and issued 380 other executive orders.
A president’s power to act without congressional authorization is limited. Although an executive order has the force of law, it cannot create new law and cannot raise revenue. For example, immigrants could not be granted amnesty or legal status by a president. Finally, an executive order is subject to judicial review, can be overturned by congressional action and can be revoked by any sitting president.
Ironically, Mr. Obama has deported almost 400,000 immigrants annually, far more than any other president. Instead of interfering with his constitutional authority to do so in an orderly fashion, congressional Republicans should tend to their legislative responsibility by supporting enactment of comprehensive immigration reform.
Bo Statham is a retired lawyer, congressional aide and businessman. He lives in Gardnerville and can be reached at firstname.lastname@example.org.