Obama Announces Immigration Plan, But Constitutional Confrontation Lies Ahead

On substance, the President's immigration actions aren't very objectionable. How he is implementing them, though, is problematic and seems needlessly confrontational.

Barack Obama

After threatening to take unilateral action on immigration back in July if Congress did not act on reform, delaying the action until after the election in response to pleas from vulnerable Democrats, and then renewing the threat after his party suffered a massive defeat in what seemed to many, myself included, as a huge political risk, last night President Obama announced the details of a plan that would involve administrative relief for certain categories of undocumented immigrants that would ultimately, temporarily at least, mean that some 5 million people will be given a form of legal status:

WASHINGTON — President Obama chose confrontation over conciliation on Thursday as he asserted the powers of the Oval Office to reshape the nation’s immigration system and all but dared members of next year’s Republican-controlled Congress to reverse his actions on behalf of millions of immigrants.

In a 15-minute address from the East Room of the White House that sought to appeal to a nation’s compassion, Mr. Obama told Americans that deporting millions is “not who we are” and cited Scripture, saying, “We shall not oppress a stranger for we know the heart of a stranger — we were strangers once, too.”

The prime-time speech reflected Mr. Obama’s years of frustration with congressional gridlock and his desire to frame the last years of his presidency with far-reaching executive actions. His directive will shield up to five million people from deportation and allow many to work legally, although it offers no path to citizenship.

“The actions I’m taking are not only lawful, they’re the kinds of actions taken by every single Republican president and every Democratic president for the past half-century,” Mr. Obama said. “To those members of Congress who question my authority to make our immigration system work better, or question the wisdom of me acting where Congress has failed, I have one answer: Pass a bill.”

In a series of rhetorical questions, he cast the immigration debate in emotional terms. “Are we a nation that tolerates the hypocrisy of a system where workers who pick our fruit and make our beds never have a chance to get right with the law?” he asked. Later he added, “Whether our forebears were strangers who crossed the Atlantic, or the Pacific, or the Rio Grande, we are here only because this country welcomed them in.”

Mr. Obama intends to underscore the schism between the parties on the issue of immigration during a campaign-like rally on Friday at a high school in Las Vegas, where Hispanics are a powerful and growing voting bloc.

The trip is part of a White House strategy to try to convince Americans in the next months that Mr. Obama’s actions are legal and right. Immigration advocates plan to use that time to push for greater protections while Republicans are devising ways to defy the president and exercise their new authority.

(…)

Mr. Obama’s actions will sharpen the focus of government enforcement on criminals and foreigners who pose security threats. High-tech workers will have an easier time coming to the United States, and security on the border will be increased.

The centerpiece of the president’s announcement is a new program for unauthorized immigrants who are the parents of United States citizens. About four million people will be eligible for a new legal status that would defer their deportations and allow them to work legally. They must pass background checks and pay taxes, but they will receive Social Security cards, officials said.

To those people, Mr. Obama said, “You can come out of the shadows.”

An additional one million people will have some protection from deportation through other parts of the president’s plan.

Mr. Obama’s actions will end a program called Secure Communities, which advocates had long criticized as a dragnet that swept up many unauthorized immigrants arrested on minor offenses like traffic violations. Local police will no longer be asked routinely to detain immigrants without papers.

Not surprisingly, the reaction from the leaders and members of the incoming Republican majorities in the House and Senate, as well as some Democrats, have been overwhelmingly negative, and there is at least the threat of some form of confrontation of the White House along with an effort to attempt to undo what the President announced last night:

“By ignoring the will of the American people, President Obama has cemented his legacy of lawlessness and squandered what little credibility he had left,” House Speaker John A. Boehner said in a statement after the speech.

Even as Republican lawyers analyzed what the White House said was the legal basis of Mr. Obama’s actions, it remained unclear how they might undo them. The agency that will carry out most of the president’s executive actions, Citizenship and Immigration Services, is funded with application fees, and does not rely on a budget vote in Congress to keep operating.

But accusations of a presidential abuse of power appear to have gained traction in recent days, as a Wall Street Journal/NBC News poll found just 38 percent support for Mr. Obama’s executive actions even as there was broad support for a path to citizenship for unauthorized immigrants. In the poll, 48 percent said they opposed Mr. Obama’s actions. Even a few Democrats have expressed concern about the propriety of the president’s actions.

“The president shouldn’t make such significant policy changes on his own,” Senator Joe Donnelly, Democrat of Indiana, said in a statement before the president’s speech. Senator Joe Manchin III, Democrat of West Virginia, told White House aides in a meeting on Thursday that he disagreed with Mr. Obama’s action.

“To put it through now is the wrong thing to do,” Mr. Manchin said after the meeting. “I told them I wasn’t comfortable.”

But Mr. Obama insisted that his actions were consistent with powers that have been exercised by presidents in both parties for decades.

The substance of what the President announced last night largely matches what had been leaked out over the past week.

First, there will be an expansion of the Deferred Action For Childhood Arrivals program that was first announced in 2012 and covered many, but not all, of those who fell into the category of people who were brought to the United States illegally as children, have been raised in the United States and attended American secondary schools and universities, and found themselves in illegal status and threatened with deportation to countries that they have no real memory of or experience with. This group largely comprises what has been called the so-called “Dreamers,” the people who would have been covered by the DREAM Act, which was blocked in the Senate by a Republican filibuster during the lame duck session after the 2010 election The original program, though, had limitations on it that meant, among other things, that people over a certain age were not eligible for the program. Under the expansion announced last night, virtually everyone who qualifies as a “Dreamer” will be able to take advantage of the relief granted under the 2012 program, which includes temporary legal status and, by virtue of that legal status, a work permit that permits them to work legally in the United States. The number of people actually covered by this expansion is estimated to be an additional 300,000 people. A second category that will be granted temporary relief, along with everything that flows from that, are parents of children who were born in the United States, who themselves are already United States citizens. These people must be able to show that they have been in the U.S. for at least five years and that the child was born before last night’s announcement. This group is estimated to consist of as many as four million people. In both cases, those applying for temporary status must be able to establish that they do not have a criminal record and pay certain fees associated with the application process that, like all fees charged in immigration cases are intended to cover the cost of the operation of the office that processes immigration applications. Finally, in both cases as in the case of DACA, the status granted by this announcement is temporary and could be repealed by Congressional action, or by the next President who takes office in 2017. In that final regard, it’s worth noting that Hillary Clinton endorsed the President’s actions in a statement released last night.

The second part of the President’s plan involves stepping up deportations of certain classes of people in the country illegally, specifically people with criminal records, gang members, people involved in drug trafficking, and those suspected of having ties with terrorist organizations. To a large degree, these are the categories of illegal immigrants that the Obama Administration has concentrated on it is deportation efforts over the past give years, to the point where it has largely been on a pace to outstrip the Bush Administration when it comes to total deportations by the end of President Obama’s eight years in office if this pace continues. What we will apparently see less of when it comes to deportations, however, are actions which end up breaking up families without regard to whether or not the people involved in the proceedings fall into the “criminal alien” category or pose a danger to the United States or American citizens.

As a matter of substance, I find little to object to in what the President announced last night, and it’s hard for me to see how anyone could. The idea of deporting people who have grown up in the United States to countries that they know little or nothing about because their parents happened to bring them here illegally as children doesn’t make sense on any level. As long as the people we’re talking about are not criminals, but instead people who have lived their lives as essentially American — going to American schools, making and playing with American friends, and hoping to one day take their place in American society — there doesn’t seem to me to be any reason to punish them for something that they aren’t responsible for. That’s the main reason why I supported the general idea of the DREAM Act, along with laws such as those in Texas that grant in-state tuition status at colleges and universities. Similarly, granting some kind of temporary status to the parents of children who are American citizens seems fine to me as well. It would be wrong to deport these children given that they have the legal right to live here, of course, and it seems somewhat perverse and heartless to force their parents to choose between living here illegally to be with their children or leaving those children behind with people who can raise them in their absence. A policy like this, of course, is likely to raise yet again the whole debate about so-called “anchor babies,” but that’s an issue that conservatives have been obsessed with for years now in any case. Finally, concentrating limited deportation resources on criminals and people who have been here only a short period of time seems to me to be entirely rational.

Leaving aside, the substance of the policy, though, I remain troubled by how the President is going about doing this. The question of the legality of the President’s actions is a complicated one that deserves more detailed attention in its own post. Honestly, though, I will say that my preliminary thoughts on that issue are that the President’s actions likely to be largely within the discretionary authority granted by the various laws that Congress has passed going back to the 1986 reform act passed during the Reagan Administration. Even if the actions are within the letter of the law, though, I remain troubled by the idea of a President who acts unilaterally in this manner, essentially thumbing his nose at Congress, under circumstances that seemed to make it clear that he didn’t really care if Congress acted on immigration reform or not. Republicans in the House deserve much criticism for not taking action on immigration reform during the seventeen months that have passed since the Senate bill passed. By the same measure, though, Democrats deserve criticism for doing nothing at all on immigration during the two years that they controlled both the House and the Senate, and the President deserves criticism for failing to recognize the new political reality that was created by the results of the midterm election on November 4th. Had the President laid down a challenge to this new Congress to work on immigration reform when it took office in January, and then they failed to act, he’d be on much firmer ground than he is today. Instead, he set a politically unrealistic goal of action by the end of the year and, in the end, didn’t even give Congress until then to act by taking action before Thanksgiving that seems guaranteed to lead only to Constitutional confrontation between the Executive and Legislative Branches, gridlock, and make it even less likely that the new Congress will act on immigration reform than it might have been beforehand.

At least initially, mostly what we’ll hear from Congress in the immediate aftermath of this announcement, of course, will be rhetoric meant for the consumption of the Republican base. To some degree, this will be because both sides will be waiting to see how the President’s plan plays with a public that, before it was announced was at least mildly opposed to the idea of unilateral executive action while being generally supportive of immigration reform. When the 114th Congress takes office in January, though, and possibly beforehand, we’ll see attempts to stop the President’s action or make him pay for it in some other regard. As I noted yesterday, there seems to be little that Congress can actually to do stop what the President has done here. At the very least, though, it’s clear that this is going to ensure that the relationship between the President and the new Congress will start of being even more confrontational and contentious than it was going to be anyway. There’s no guarantee that things would have been different if Obama had waited, of course, but it would have been worth a try in my opinion, but now we’ll never know what that world might have been like.

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FILED UNDER: Barack Obama, Borders and Immigration, Congress, Politicians, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. C. Clavin says:

    What that world might have been like?

    McConnell: The single most important thing we want to achieve is for President Obama to be a one-term president.

  2. OzarkHillbilly says:

    The President is being “needlessly confrontational” Doug? Really? You actually said that? BWAHAHAHAHAHAHAHAAHAAHAHAHAAHAAHAAHAA… You would be far better as a late night comedian than you are as a political commentator.

    Wake up, Doug. Most Republicans find his very breathing to be “needlessly confrontational”.

  3. James Pearce says:

    If Congress were held in higher esteem, I could almost understand the concerns about process you have, Doug. If Congress were somewhat more functional, if they took their mandate seriously, then I could understand.

    But Congress is a joke. I don’t know what the deal is, if it’s too small, too large, if it’s too corrupt, not corrupt enough, but it’s a joke. The only thing they can be relied on is to run for re-election.

    In that context, it seems like the only reason to oppose this executive action is if you think it shouldn’t have been done in the first place.

  4. @OzarkHillbilly:

    1. The President gave a post-election deadline of the end of the year, which I said at the time was politically unrealistic in any case, and then ignored his own deadline to act a month earlier;

    2. There would have been nothing wrong with POTUS waiting until the new Congress took office on January 3rd, given them a deadline to at least begin action on a bill, say 90 days, and then act if they failed to; and,

    Therefore, I contend that the phrase “needlessly confrontational” is entirely appropriate.

    And, obviously, you conveniently miss the part where I said I supported the substance of the plan. It’s the method of achieving it that I have problems with.

  5. OzarkHillbilly says:

    And speaking of “needlessly confrontational”, I await the denouncements of Kris Kobach’s “ethnic cleansing” threats from the responsible leaders of the Republican party. I am sure they are madly calling reporters everywhere.

    BWAHAHAHAHAHHAAAHAHAAHAHAAHAHAAHAHAHAAA… gasp, wheeze….

    Sometimes I just crack me up.

  6. OzarkHillbilly says:

    @Doug Mataconis:First off Doug, you and I both know the GOP had absolutely no plan whatsoever to do anything at all about immigration anytime before the next geological ice age, so let’s just cut that BS right now.

    And, obviously, you conveniently miss the part where I said I supported the substance of the plan. It’s the method of achieving it that I have problems with.

    And second of all, no, I did not miss that part . It was quite beside the point. My point being that you seem to have missed the last 6 years.

  7. James Pearce says:

    @Doug Mataconis:

    I said I supported the substance of the plan. It’s the method of achieving it that I have problems with.

    If Obama announced last night that he was pushing through the Keystone pipeline, would the same concerns about executive action be paramount?

    Me, I don’t think a couple votes below cloture should mean it’s truly dead.

  8. Jenos Idanian #13 says:

    The Constitution is clear: Congress is obligated to pass laws that reflect the president’s desires. And if they don’t fulfill their obligation to do so, the president is not only allowed to, but required, to simply implement what he wants by executive fiat.

    It’s in one of the penumbras of Article II of the “evolving document’ version. Look it up.

  9. @Doug:

    I do not have strong feeling on this topic (basically I support the general policy moves, but do not especially like the route to get there–keeping in mind it is hardly unprecedented).

    However, I do find this characterization problematic:

    I remain troubled by the idea of a President who acts unilaterally in this manner, essentially thumbing his nose at Congress, under circumstances that seemed to make it clear that he didn’t really care if Congress acted on immigration reform or not.

    That makes it sound as if Congress has a plan and the President is ignoring it. That is almost directly opposite from reality, yes?

    Given long-term (going back to the Bush administration) hostility towards immigration reform on the part of congressional Republicans, it strikes me as incorrect to characterize the president’s move as thumbing his nose at Congress insofar as the Congress has been utterly ignoring (save via demagoguery) this issue for about a decade.

  10. Rick DeMent says:

    … Because the GOP has never ever once thumbed their nose at the president, they have never ever once not accepted the verdict of elections in 2008 and 2012, they have never ever once sought to “poison the well”. They have never ever heckled the president during the SotU address.

    Look frankly Obama has been a freaking saint putting up with the indignity of this congress and if what he did last night makes them feel all powerless then craft some legislation and pass it.

    If the Republicans would spend 15% of the energy on crafting legislation that they have they have been on weakening the president we would have had the most productive congress in the history of the nation.

    The tortured logic that Doug has crafted here to make it seem as if Obama is being even a little unreasonable, criminal, or just plain mean to Republicans is breathtaking.

  11. Steven,

    There’s nothing that requires Congress to have a plan. If Congress doesn’t want to act in a particular policy area, and the public doesn’t choose to act to change that, then I don’t see why it is proper for the President to unilaterally attempt to do what Congress is not doing. That’s not how the system is supposed to work.

  12. Moosebreath says:

    “At the very least, though, it’s clear that this is going to ensure that the relationship between the President and the new Congress will start of being even more confrontational and contentious than it was going to be anyway.”

    This assumes that there was no history between the President and Congress (which is largely comprised of the same people who were last the last 6 years) and therefore no reason to believe that they would be confrontational and contentious. In the real world, we have a President who was twice elected with the largest majorities in a generation, and a Congressional Republican delegation who from the beginning had no intent on working with him and confronted him in every way possible, even on the most routine and non-contraversial matters.

    Or as I have posted before (quoting Kevin Drum):

    “Look: Republicans can decide for themselves if they want to go to war. If they want to pass yet another bill repealing Obamacare, that’s fine. If they want to sue the president over the EPA or immigration, that’s fine. If they want to approve the Keystone XL pipeline, that’s fine. I assume Obama will win some of these battles and lose others, but in any case will treat them as the ordinary cut and thrust of politics instead of declaring them calculated insults that have infuriated him so much he can’t possibly ever engage with the GOP again. In other words, he’ll act like an adult, not a five-year-old.

    This is what we expect from presidents. Why don’t we expect the same from congressional Republicans? Why are they allowed to stamp and scream whenever something doesn’t go their way, and everyone just shrugs? Once and for all, why don’t we demand that they act like adults too?”

  13. LaMont says:

    Had the President laid down a challenge to this new Congress to work on immigration reform when it took office in January, and then they failed to act, he’d be on much firmer ground than he is today.

    “Firmer ground”? With who? If it has anything to do with the law, you have already acknowledged that it is likely within the President’s right. It doesn’t matter if it were done today or next year. Or are you concluding that the republicans would be less irritated after 90 days from January than they are today? Of course that is a joke. And oh by the way – 48% of the American public would still prefer the President and Congress to work together well into 2015. I agree with @James Pearce:. What the President did appears to be reasonable given the political environment and any argument against it is nit-picking and likely reveals that you were against it in the first place.

  14. Tyrell says:

    There was a time when these people came in, laid low, found work, obeyed the laws, and helped each other out. They knew they were here illegally, none of that “undocumented” nonsense back then.Much to their credit they attended church regularly. They did not seek handouts from the government: they don’t believe in it. And they don’t respect those who do.
    In the last few years s new element has started creeping in. Border guards are being killed. More gang members, drug pushers, and violent criminals are coming in. Police departments around the country have seen it. The citizens have watched and noticed it. The president must address that issue and tighten things up at the borders. We can’t have bus loads rolling through here like happened last spring. Thorough background checks must be done and those with a record must be shipped out immediately.
    The problem is with the timing. It could result in more of these criminal, gang types coming in here.
    Some of these countries will see the president’s action as a signal and empty out their prisons to point them in this direction.

  15. C. Clavin says:

    I am loving the reactions from all the cry-babies.
    Lying and calling this amnesty for illiterate voters…when it is neither amnesty nor does it grant voting rights.
    Tom Coburn…anarchy and violence.
    Kobach…ethnic cleansing.
    Talk of putting Obama in jail…which is rich coming from the party that supports torture.

    All this over something that is temporary…is nothing that 6 other Presidents haven’t done…and can be undone by simply passing a bill.
    Shut up and pass a bill.
    And if you don’t we will all know this is just silly posturing with which to further dupe Jenos and the rest of the Republicanist cult.

  16. James Joyner says:

    @Steven L. Taylor:

    Given long-term (going back to the Bush administration) hostility towards immigration reform on the part of congressional Republicans, it strikes me as incorrect to characterize the president’s move as thumbing his nose at Congress insofar as the Congress has been utterly ignoring (save via demagoguery) this issue for about a decade.

    While I find it frustrating on a whole number of levels, “hostility towards immigration reform,” how isn’t enacting it through executive fiat “thumbing his nose at Congress”? They haven’t utterly ignored the issue, they’ve insisted—unreasonably, we both agree—that the president enforce the law and throw out all the illegals.

  17. LaMont says:

    @Steven L. Taylor:

    I support the general policy moves, but do not especially like the route to get there

    It is understandable that no one likes the way the President used his power – which is legal. However, that has less to do with Obama’s style of governing and more to do with the GOP’s irrationality toward immigration. That’s should not be lost in the discussion.

  18. Davebo says:

    @Tyrell:

    In the last few years s new element has started creeping in. Border guards are being killed. More gang members, drug pushers, and violent criminals are coming in.

    Is this a gut feeling you have? Because the statistics certainly don’t support such a claim.

  19. Davebo says:

    @James Joyner:

    They haven’t utterly ignored the issue, they’ve insisted—unreasonably, we both agree—that the president enforce the law and throw out all the illegals.

    No James, they haven’t. At least not the Republican party.

    I’m not sure why you feel so strongly on this issue in a passive aggressive sort of way but if you can name me 10 prominent Republicans who have suggested the US should “throw out all the illegals” that aren’t self described tea party members I’ll eat my shoe.

    The GOP doesn’t act on the problem of illegal immigration because they don’t believe there is a problem. Nor does the US Chamber of Commerce nor Heritage or Cato.

    And your assertion is as silly as your recent claim that Obama’s actions here represent an impeachable offense.

    It must cause great conflict to be forced to continue to make excuses for the GOP. It’s a little sad to watch actually.

  20. stonetools says:

    By the same measure, though, Democrats deserve criticism for doing nothing at all on immigration during the two years that they controlled both the House and the Senate,

    What nonsense. During that time, Congress passed a stimulus program that prevented the country from going into a second Great Depression, passed HCR, repealed DADT, Ratified a new START treaty, and passed a financial reform law-all against maximal resistance from Republicans.
    Seems to me the Democrats were pretty busy 2008-2010. They didn’t get to immigration reform, but they did a heckuvalot of stuff-some of which had to be done right then.

    What the heck has House Republicans done since 2012, except pass 50 useless ACA repeal bills, refuse to take up the Senate immigration bill, and shut down the government?
    When you look at the record of those two years, what’s amazing is that so much was done. The record of the last four years of Republican control of the House is miserable.

  21. LaMont says:

    @James Joyner:

    Does the President of the United States of America have a right to set an agenda or not? He was elected twice, overwhelmingly, to set his own agenda. Therefore, it is not enough for Congress to not act then become irritated when the President acts because of their inaction. You may not like the way the President is doing it but that is entirely the Congress’s fault. Republicans are on record saying we need to do something about immigration.

  22. stonetools says:

    @Doug Mataconis:

    There’s nothing that requires Congress to have a plan.

    Indeed, and there’s nothing in the Constitution to prevent the President from acting on his own to achieve a policy objective, so long as he is acting within his powers. The President was acting on his own to execute his plan to kill Osama bin Laden. Did he act outside the system when he did that?

  23. Scott says:

    that the president enforce the law and throw out all the illegals.

    Really what we are talking about is selective enforcement of the law. Well, that has always be done. If we were enforcing the laws without selectivity, then there would be daily, multiple ICE raids on businesses and large fines and penalties handed out to business. We don’t do that either for obvious reasons.

  24. Rick DeMent says:

    @James Joyner:

    You know James when you decide to use the phrase, “thumbing his nose at Congress”, you expose yourself as being a bit of a joke. Why is it that congressional republicans get to act like the 4 year olds they have been since the nano second Obama took office, but any hint of political gamesmanship coming from the white house twists you up like a cork screw?

    Look this issue is simple, there is already a Senate bill on the table. The one Rubio has been running away from since he proposed it. But the House won’t pass it. Why? Because the house won’t pass any bill on immigration that actually addresses the real problems and concerns related to immigration. They want a bill that will be punitive, expensive and completely counter productive so that the Tea party will stop crapping their pants.

  25. C. Clavin says:

    @James Joyner:

    that the president enforce the law and throw out all the illegals.

    Yes…throwing out over 12 million people is a very serious position.
    C’mon James…that water has to be getting heavy.

  26. C. Clavin says:

    Everyone who has whined about Obama not being a leader is now whining about him being a leader.
    Go figure.

  27. stonetools says:

    @Davebo:

    The problem for the GOP, of course, is that they are divided between the Chamber of Commerce wing, who wants the illegals here to serve as a pool of cheap labor, and the Tea Party wing, who want to throw out all the browns. I doubt they can agree and there will be a messy debate now on what the response to the President’s action-a debate the Republican leaders didn’t want to have.

  28. SKI says:
  29. stonetools says:

    @C. Clavin:

    Heh, Ron Fournier is one confused person right now…

    “Why won’t the President lead?

    “No, not that way…”

  30. @Doug Mataconis: I understand the position. I guess it all depends on what “thumbing one’s nose” means. I guess, ultimately, I am sympathetic to the problem that the executive faces in dealing with a very real policy problem that the legislature refuses to address.

    @James Joyner:

    They haven’t utterly ignored the issue, they’ve insisted—unreasonably, we both agree—that the president enforce the law and throw out all the illegals.

    Well, as an institution they have, in fact, ignored the issue. The fact that some members of one party have a known position does not equate to Congress having acted.

    As you know, I would prefer that the legislature legislate. I have reservations about executive orders in general. One thing I fully agree with the president on this topic: Congress should pass a bill.

    However, given the notion of prosecutorial discretion and, at the moment, I see this move as within the bounds of the law and previous court decisions.

    In general I find that the inability of the federal government to address this serious issue to be an example of true dysfunction in our system (especially when we know that there is public support for immigration reform).

  31. Geek, Esq. says:

    The issue is not executive overreach, it’s the complete and profound abdication of Congress of its role.

    A Do-Nothing Congress will yield a Do-Everything President.

    Congress has no standing to complain when the president moves into a space Congress has ceded unilaterally.

  32. al-Ameda says:

    The Republican Party has been “needlessly confrontational” since Inauguration Day in January 2009.

    This is nothing more that a dare by Obama, to the Republican Party, to do something about his Executive Order. Obama is looking ahead to a 42-58 Senate and a very very small chance that he gets what he is ordering here. High stakes, I wish him well.

  33. Just Me says:

    Can’t wait to see everyone defending this move defend a republican president who does similarly because the democratic congress won’t give him his way.

  34. LaMont says:

    @Just Me:

    At this rate, the republicans aren’t likely to win a presidential election for the next 10 to 12 years.

  35. stonetools says:

    @Just Me:

    I would be urging that Democratic Congress to do its job and pass legislation. Democratic Congresses actually do that when they are in the majority.

  36. Gavrilo says:

    @Steven L. Taylor:

    However, given the notion of prosecutorial discretion and, at the moment, I see this move as within the bounds of the law and previous court decisions.

    There is a huge difference in the President using his discretion to prioritize deportations even deciding not to enforce immigration laws at all. I would agree that he likely has that authority. But, this goes way beyond that. By issuing work permits and conferring a legal status on certain immigrants who are in the U.S. illegally, the President is re-writing the law. The law already determines who is eligible for a work permit in the U.S. and the criteria for obtaining one. The President is substituting his own policy for what is already the law. This goes beyond prosecutorial discretion. It’s one thing for the President to choose not to enforce a law, it’s something totally different for the President to unilaterally change the law.

  37. @Gavrilo:

    By issuing work permits and conferring a legal status on certain immigrants who are in the U.S. illegally, the President is re-writing the law. The law already determines who is eligible for a work permit in the U.S. and the criteria for obtaining one.

    This aspects is potentially quite problematic. I have not had the opportunity to fully investigate this aspect of the proposal, so am reserving judgment at the moment.

  38. Tillman says:

    By the same measure, though, Democrats deserve criticism for doing nothing at all on immigration during the two years that they controlled both the House and the Senate…

    Seven months, not two years. They controlled the House since 2006, but they only controlled the Senate (in as far as anything can get done in the Senate without a filibuster, a McConnell invention) between Al Franken’s seating (July 7th, 2009) and Scott Brown’s seating (February 4th, 2010). As stonetools notes, they passed a lot of legislation in that period, a good deal of which has been referred to by the Republicans as having been “shoved down the American people’s throat.” Your criticism of their inability to squeeze more in to that period would not only have played into Republican talking points of the time, but exposes just how ineffective Congress has been since the Republicans took control of the House.

    …the President deserves criticism for failing to recognize the new political reality that was created by the results of the midterm election on November 4th.

    What political reality is this? That a Republican-controlled Congress is incapable of passing immigration reform for various reasons? That a low turnout midterm election changed control of a Senate that has been incapable of doing anything without the threat of filibuster since 2009? The political reality you’re describing only exists in the heads of pundits. In terms of ongoing dysfunction, nothing has changed.

    But hey, anything for the “both sides do it” points I guess. There needs to be a Latin phrase for that.

  39. Tillman says:

    @Gavrilo: Not exactly sure what part of it counts as rewriting the law. This piece at Slate links to the Justice Department’s own analysis of the executive order, and it seems to fall in line with what past presidents have done and past Congresses have allowed.

    The bit that convinced me:

    The fundamental fact is this: There are 11.3 million people in the United States who, for one reason or another, are deportable. The largest number that can be deported in any year under the resources provided by Congress is somewhere around 400,000. Congress has recognized this and in 6 U.S.C. 202 (5) it has directed the secretary of homeland security to establish “national immigration enforcement policies and priorities.” In the action announced tonight, the secretary has done just that, and the president has approved.

    Admittedly I’m not even an armchair immigration law expert, but where does it stray from legality?

  40. ralphb says:

    @Gavrilo: Multiple analyses today have shown you to be completely wrong about the work permits function. That’s actually decidable by the AG, according to statute.

  41. Tillman says:
  42. OzarkHillbilly says:

    @James Joyner: Wow James, “throw out all illegals” without providing near enuf funds to accomplish this wholly impossible task. Now I know why you are a Republican.

  43. Just 'nutha ig'rant cracker says:

    @Doug Mataconis: Gawd!!! And I thoughtI was an ignorant cracker!