Obama Deserves to Win on Immigration

Good advice.

Photographer: Alex Wong/Getty Images

The Supreme Court on Monday heard oral arguments in a momentous case about the high cost of driver’s licenses. It also implicates the historic place of immigration in the U.S. economy and society, not to mention the proper separation of powers between the executive and the legislature in the American system of government.

United States v. Texas isn’t really about driver’s licenses, of course, which Texas implausibly says cost the state more than $100 each. It’s about the president’s right to execute immigration policy -- especially in the absence of congressional action. It’s a case that -- for his own sake and for that of his successors -- President Barack Obama deserves to win.

In the case, the federal government is seeking to overturn a ruling that prevents the administration from following through on Obama’s executive actions shielding roughly 4 million undocumented immigrants from deportation while enabling them to apply for work permits. As Solicitor General Donald Verrilli told the court, deferring deportation of these immigrants does not make them citizens. It does, however, provide them with a measure of dignity. It also acknowledges a practical and political reality: The U.S. will not deport 11 million people, many of whom have lived here for more than a decade.

Since the federal government maintains “broad, undoubted power over immigration and alien status,” as the Supreme Court affirmed in 2012, Texas needed to show a specific harm to have the standing to sue. It claimed that, among other costs, the executive actions would increase the cost of issuing state driver’s licenses to undocumented immigrants enrolled in the programs.

The Obama administration argued that a ruling in Texas’ favor would allow any state to sue the federal government willy-nilly whenever federal laws or regulations change. Meanwhile, other states, such as California, pointed to Obama’s policy as a source of increased economic activity, higher incomes and state tax revenue that would directly benefit them. In other words, if Texas wins, California is harmed. What then?

The question of whether Obama overstepped his constitutional authority is reasonable. Justice Anthony Kennedy complained from the bench that the administration had turned the traditional constitutional order -- Congress passes the law and the president executes it -- upside down.

It’s true that a legislative solution to the immigration problem would have been best. Obama should have pushed harder to reach a deal with Congress after Republicans won control of the Senate in 2014. Nevertheless, the immigration crisis the U.S. faces is political, not constitutional.

It's worth noting that Congress has refused to supply funds sufficient to do what the House majority implicitly has endorsed -- deporting 11 million undocumented immigrants. Consequently, it’s up to the executive to prioritize deportations in accord with available resources and the public interest.

Faced with a choice between a failed status quo perpetuated by a dysfunctional Congress, or an aggressive use of executive authority, Obama chose the latter. There is reason to regret that necessity. Judging from the arguments heard by the court on Monday, however, there is little reason to believe that it violates constitutional limits on executive power or imposes onerous burdens on states.

To contact the senior editor responsible for Bloomberg View’s editorials: David Shipley at davidshipley@bloomberg.net.