Obama's Gamble on Immigration Can Still Pay Off
Two months ago, President Barack Obama gambled that his immigration policies had a better chance of winning a majority on the Supreme Court than in Congress. It’s a bet he never should have made. Now that the court has accepted it, however, he needs to win -- not for his own sake but for that of future presidents and the millions of immigrants it would help.
The Supreme Court agreed on Tuesday to hear the Obama administration’s appeal of a case putting its immigration policy on hold. The policy allows immigrants who are in the country illegally but have children who are citizens or green card holders to remain in the country and apply for work permits -- provided they have been in the country for five years and stayed out of trouble with the law. There are about 5 million such residents.
The policy was bound to end up before the court. Days after Republicans captured control of both houses in the 2014 elections, Obama announced that he would not wait for the new Congress to pass legislation fixing the nation’s long-broken immigration system. Instead, he acted unilaterally.
Now, if the Supreme Court finds that the attorneys general who brought the case have standing to sue, it will have two questions to answer. The first is whether the Obama administration should have undertaken a formal rule-making process, with a notice and comment period, before carrying out this change. The second is whether the president overstepped his authority by ignoring existing law.
The second question is more consequential. The Constitution requires the president to “take care that the laws be faithfully executed.” The trouble is, it would be impossible -- and economically disastrous -- to attempt to deport the 11 million people residing here illegally.
Furthermore, the courts have never curtailed the executive branch’s authority to manage immigration. In 1930, President Herbert Hoover stopped immigration of all people except those with the means to support themselves, even though he had no explicit legislative authority to do so. Since then, presidents of both parties have used their authority to allow immigration, and block deportation, outside of legislatively granted channels. The Supreme Court should not curtail the president’s authority to manage the country’s borders in the absence of enabling legislation.
The court’s decision will probably come after the two parties have selected their presidential nominees. It will inevitably split the parties and keep immigration at the center of the presidential debate, which is right where it belongs -- because whichever way the Supreme Court rules, legislation remains necessary to fixing the problem.
The Obama administration’s immigration legacy will be at best a temporary fix to part of the problem. But it’s a legacy that should stand until Congress, not the court, acts.
To contact the senior editor responsible for Bloomberg View’s editorials: David Shipley at email@example.com.