There were no surprises. There was no executive order – this was not Lincoln’s Emancipation Proclamation or Harry Truman’s executive order desegregating the Armed Forces once and for all – there was just an address from President Obama, not carried on network television, where he explained that he was going to adjust enforcement activities, to concentrate on sending dangerous folks back home to wherever they came from, and getting to everyone else, who really shouldn’t be here, later. That was the outrage that had everyone on the right seething. Obama was taking unilateral action to change immigration policy, changing the law all on his own without Congress – the folks who create and pass all our laws – when he was, of course, making minor adjustments to the enforcement of current immigration law, such as it is. The dispute over what this was – the work of that devious tyrant-slacker from Kenya, to end democracy as we know it here in America, or some necessary administrative steps to begin to rationalize our hopelessly confused immigration-control activities, because Congress can’t seem to pass anything about anything at all these days – will continue.
The dispute is politically useful. Republicans will whip up outrage over this bully would-be dictator that the American people foolishly elected two times, who uses our government to give stuff to people who deserve only contempt. There are votes there. Democrats get to whip up outrage over this ultimate do-nothing Congress that only says no, to everything, with no ideas of its own, and wants to stick it to the poor and the unemployed and minorities and gays, and to greedy American workers who want too much and are ruining American businesses, and now wants to stick it to these hard-working good folks without papers, because Hispanics make them uncomfortable. There are votes there too – lots of them. There’s no reason each side wouldn’t think of this as a big deal.
That’s a stretch, but maybe not:
President Obama invited as many as 5 million immigrants and international visitors Thursday to openly live and work in the U.S., a controversial, unilateral demonstration of his power that signaled a new phase of activism for the remainder of his presidency.
Without a vote from Congress, Obama set in motion a government program that, starting next year, will begin to evaluate applicants and enroll those eligible to protect them from deportation.
The majority of those affected under the executive action, about 4.1 million, could be eligible for a program that will invite parents of either U.S. citizens or long-term permanent residents to apply for a work permit and three years of protection from deportation. Applicants will have to prove they have been in the country at least five years.
This is a select group of people – fewer than half of the eleven million people living and working here without legal permission to do so – but it’s still a lot of people, and a big change. Is that outrageous? There’s an answer to that:
Wearing a solemn dark suit and repeatedly pointing his finger, Obama challenged lawmakers who doubt his authority to act.
“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,” he said.
In the meantime, there’s this:
Short of any legislation, the president is also ordering an expansion of a program that defers deportation of people who arrived in the U.S. as children before June 2007. By opening the program, known as Deferred Action for Childhood Arrivals, or DACA, to people who immigrated as recently as 2010 and removing a cap on the age of the applicant, the directive will make roughly 300,000 more people eligible.
Obama will make other changes affecting another 600,000 people, in part by expanding and adding visas for entrepreneurs and recent graduates in science and technology.
But don’t get too excited:
In arguing that the executive action is within the bounds of the law and Constitution, its architects noted that it is temporary and revocable. It relies largely on the concept of discretion as it is exercised every day by prosecutors.
One senior Obama administration official insisted repeatedly Thursday, “It is not a pathway to citizenship.”
Congress has to decide if it wants to create that pathway. Obama can’t do that. That’s not his business, and thus this is about existing law:
The major changes will come as directives from Homeland Security Secretary Jeh Johnson to his agency, not as an executive order from Obama, policy advisors to the president said. That’s in keeping with earlier actions Obama has taken on immigration.
In addition to Obama’s other changes, a new memorandum from Johnson will alter his agency’s priorities for deportation. Immigration officers will be instructed not to deport people who were convicted before 2014 of low-level immigration violations.
The priorities for deportation will be revamped to fast-track removal of suspected terrorists and people convicted of gang crimes or other serious felonies.
The second level of priority for removal will be of people with “significant” misdemeanors, multiple misdemeanors or immigration violations committed after Jan. 1, 2014.
A third level of priority will be for people who failed to abide by a removal order given after Jan. 1 and those who left the U.S. and re-entered illegally after that date.
This is about it, a matter of deciding what to do first, because it’s important to do, and then moving on down the list to less important matters, even if they are important too. It’s no more than resource allocation, and common sense:
“I know some of the critics of this action call it amnesty,” Obama said. “Well, it’s not. Amnesty is the immigration system we have today – millions of people who live here without paying their taxes or playing by the rules, while politicians use the issue to scare people and whip up votes at election time.”
“Mass amnesty would be unfair,” he said. “Mass deportation would be both impossible and contrary to our character. What I’m describing is accountability – a common-sense, middle-ground approach: If you meet the criteria, you can come out of the shadows and get right with the law.”
It’s hard to see what the fuss was about, and here’s a bit of Andrew Sullivan’s assessment:
Did he make the case that a mass deferral of deportations was the only option for him? Not so effectively. His strongest point was simply the phrase: “pass a bill.” Saying he is doing this as a temporary measure, that it will be superseded as soon as a law reaches his desk, gives him a stronger position than some suppose. There is more than one actor in our system. The president and the Senate have done their part; the House has resolutely refused to do its – by failing even to take a vote on the matter. Why, many will ask, can’t the Congress come up with a compromise that would forestall and overrule this maneuver? What prevents the Republicans from acting in return to forestall this?
The question is obvious, and that was obviously planned out carefully – make the Republicans look like sour old men, bitter in their impotency. It was almost sexual. The young and dynamic and viral guy will at least get something done, and instead of being sour, he will do what they only wished they could do. At least that’s what Sullivan saw as he watched:
His early backing of even more spending on the border, his initial citing of the need for the undocumented to “get right with the law” by coming out of the shadows to pay back taxes, among other responsibilities, was a way to disarm conservative critics. It almost certainly won’t. But it remains a fact that the speech – in classic Obama style – blended conservative stringency with liberal empathy in equal parts.
That’s hard to pull off, but Obama is comfortable in what Sullivan calls the moderate middle:
Obama’s position on immigration – as on healthcare – has always been that. It’s utterly in line with his predecessor and with the Reagan era when many conservatives were eager for maximal immigration. His political isolation now is a function, first and foremost, of unrelenting Republican opposition and obstructionism. From time to time, then, it is more than good to see him openly challenge the box others want to put him in, to reassert that he has long been the reasonable figure on many of these debates, and to remind us that we have a president whose substantive proposals should, in any sane polity, be the basis for a way forward, for a compromise.
Compromise is, unfortunately, not possible these days:
This act of presidential doggedness, after so long a wait, may well inflame the divisions further. I still have doubts about the wisdom of this strategy. But I see why this president refuses to give in, to cast his future to fate, to disappoint again a constituency he has pledged to in the past, and why he is re-stating his right as president to be a prime actor rather than a passive observer in the last two years of his term. That’s who many of us voted for. And we do not believe that the election of a Republican Senate in 2014 makes his presidency moot…
The branches are designed to clash and to jostle over public policy. And the Congress has one thing it can do now that it has for so long refused to do. It can act. And it should.
And it won’t, because they’re angry, or know they’re supposed to be angry, or know that being angry is critical to their political survival, and now they’re even angrier because Obama has dared them to do what they have taken pride in not doing for six years, to pass some actual legislation. Given the rifts in their party maybe they can’t do that any longer – Ted Cruz wants one thing, shutting everything down to get Obama to stop doing whatever he’s done, and John Boehner wants another, a legacy of some sort of meaningful legislation. The situation may be hopeless, which makes them even angrier.
Obama wants something else. Peter Beinart argues here that Obama “decided once again to trigger the hatred of defenders of the status quo because, I suspect, he knows American history well enough to know that real moral progress doesn’t happen any other way.” He’s not like them:
Yes, Obama is a pragmatist. Yes, he is professorial. Yes, he wants to be liked by his ideological opponents and by the powers that be. But he also knows that were he in his twenties today – a young man of color with a foreign parent and a foreign-sounding name – he might be among those activists challenging the vicious injustice of America’s immigration system. When Obama talked about “the courage of students who, except for the circumstances of their birth, are as American as Malia or Sasha; students who bravely come out as undocumented in hopes they could make a difference in a country they love,” he wasn’t only comparing them to his daughters. He was comparing them to himself.
For progressives, this was always the real promise of Barack Obama. It was the promise that a black man with a Muslim name who had worked in Chicago’s ghettos – a man who had tasted what it means to a stranger in America – would bring that memory with him when he entered the White House. It’s a promise he fulfilled tonight.
How are they supposed to deal with that?
Ramesh Ponnuru isn’t that kind:
I imagine that most left-wingers will rally behind the president’s immigration policy, especially since it appears to be a minority position. But some of them will be complaining that the president didn’t go far enough. And we should take a moment to appreciate that they have a point. The moralizing language Obama used, which essentially cast attempts to enforce the immigration laws as acts of indecency, are hard to square with the limits that he set.
These were, after all, no more than administrative adjustments, and Dara Lind wonder if they can change anything:
In order for the program to be effective when it officially launches (which is expected to be in spring of 2015), people are going to have to apply. And that could be tricky. After all, these are people who’ve been living in the shadows for years – and have learned that any interaction with government officials could lead to their deportation.
The good news is that the administration and community groups have done something of a test run on the new program – via the DACA program in 2012. The push to get unauthorized immigrants to apply for DACA has created an existing infrastructure that can now be built on for the new, expanded relief programs. But in order to build on that, they’re going to need more money and more lawyers. And the government agency running the program, US Citizenship and Immigration Services, doesn’t have much money to spend on outreach.
This may not work as intended, but Byron York says it’s all political anyway:
Obama’s action is not about winning broad support now. It’s a long-term effort to increase the number of Hispanic voters, who chose Obama over Mitt Romney by 71 percent to 27 percent in 2012. If that support can be cast in cement, and the number of Hispanic voters increased even beyond current demographic trends – well, that would be very good news for the future health of the Obama coalition.
That’s cynical, but Jamelle Bouie argues that now it is not Obama who determines that:
At most, the president’s immigration order might strengthen the short-term bonds among Latinos, Asians, and the Democratic Party. More significant, I think, is the Republican reaction. If the GOP reacts to the immigration order with unhinged hysteria and anti-immigrant animus … it could further estrange itself from these groups. And that, more than anything, could shift the long-term shape of our politics.
Marc Ambinder sees what is coming:
You think you’ve heard the last of talk radio hosts bloviating about Ebola-carrying migrants sneaking across the southern border? It’s about to get much worse, and much more toxic. By singling out certain classes of undocumented immigrants, Obama puts a bullseye on the backs of those who do not qualify for documented status. Add the idea that the president is acting like a dictator and — Kaboom! The act of granting amnesty becomes even more associated with one political party.
And Paul Suderman argues here that real immigration reform just got a whole lot harder:
Unprecedented, unpopular, large-scale, unilateral policy changes are nearly certain to produce a backlash – against the president, against his party, and against the ideas at the heart of the policy change itself.
To me, this is the most significant risk of Obama’s plan – that it will create a backlash, not only amongst congressional Republicans, but within the public at large, a backlash that makes it more difficult to achieve a stable, legal, and politically viable system of expanded and simplified immigration, one that is not dependent on a sympathetic executive or enforcement discretion, but that is codified in law and agreed upon by enough of the country’s residents and legislators.
That may never happen no matter what Obama does, or who decides to oppose what he does. Eric Posner, that pesky professor at the University of Chicago Law School, sees that the real problem here is structural:
America has a huge and insatiable hunger for cheap labor – workers to mind the kids, trim the hedges, pick strawberries, and slaughter chickens. But the United States also has numerous laws that make labor expensive. These laws impose minimum wages and maximum hours, give workers the right to unionize, and protect them from unsafe conditions. They also provide welfare to those who don’t work, and many people prefer no job to a menial job. The result is that few American workers will do the really cheap labor that so many households, factories, and farms demand.
Foreigners, however, will. In Mexico, 40 million people earn less than $2,000 a year. They can migrate to the United States and earn 10 or 15 times that amount even if they work off the books. True, they cannot form unions or complain if the workplace is unsafe, but life is still better than back home. The laws that matter are the laws of supply and demand, as a result of which 11 million people reside illegally in the United States.
Many people who feel threatened by legal immigration have been able to live with this system of illegal labor. Because undocumented immigrants are denied social services, Americans don’t pay taxes to support them. Because they do menial jobs, they don’t undercut the wages of most American workers. Because they can’t vote, they can’t get these rules changed through political action.
Looking at it that way, we don’t have a “broken” immigration system at all. We have one that evolved organically that satisfies everyone, more or less. Obama is messing with a good thing, but Posner does concede that it is rather unstable:
The people who come to work here for cheap wages often settle permanently and become integrated in communities that include American citizens. They intermarry or they arrive as an American’s parent, sibling, or child. The natural sort of sympathy toward the laboring poor that animated many of the protective laws for Americans has led to political pressure to extend the laws to undocumented immigrants as well. People feel uneasy that a large group of second-class citizens resides on our soil – hence the constant drumbeat from many quarters for a pathway to citizenship.
But to give undocumented immigrants citizenship is to acknowledge that they are entitled to it, and that the “illegal immigration system” is unjust. The current system violates deeply ingrained American principles, which hold that everyone should receive equal protection of the law. That is why the obvious solution to illegal immigration – a lawful guest-worker system – is opposed by nearly everyone, but especially liberals, who see it as institutionalizing a caste system. Indeed, countries that use formal guest-worker systems – like the Persian Gulf countries – are routinely accused of exploiting and abusing migrant workers, of maintaining a caste system or even a system of de facto slavery, of violating human rights law, even though those workers benefit massively from wages much higher than they could earn at home.
That’s the problem here:
The contradiction between ideological opposition to guest workers and the huge demand for cheap foreign labor is the key to the present controversy. To avoid the appearance of a legally recognized caste system while allowing one to exist in reality, Congress has given nearly full legal rights to legal immigrants and passed tough laws to keep everyone else out – while appropriating far too little money to enforce them. This throws to the executive the task of deciding whom to enforce the laws against. Because Congress appropriates only enough money to deport 400,000 people per year out of 11 million, the president by necessity must pick and choose whom to deport. It’s no surprise that for decades every president has deported mainly criminals while leaving most everyone else alone.
Obama, then, is just doing what he can to maintain the status quo, like others before him, and this big deal announcement was nothing much:
The president’s discretion to enforce the immigration laws has always been the cornerstone of a de facto guest-worker (or, if you want, caste) system from which most Americans have greatly benefited. That’s why Republicans’ claim that the president is shredding the Constitution sounds so odd to people knowledgeable about immigration law. He’s just doing what countless Congresses have wanted him to do, and have effectively forced him to do, so that Congress itself could avoid charges that it has created a two-tier system of citizenship where the bottom tier is allowed to stay in this country and work, but is not allowed to vote, to benefit from welfare programs, to travel freely, or to enjoy the full protection of workplace laws. Of course, you might say that the whole illegal immigration system, with its two-tier system of rights, violates the Constitution or at least constitutional values, but the fault for that lies with Congress, not with the president.
That would mean nothing will change:
Obama’s action will not fix the problem of illegal immigration; nor would congressional action that created a legal pathway to citizenship. The great irony is that as undocumented aliens gain rights, they will no longer need to, or even be able to, supply menial work at a low wage. Illegal immigration will rise again, just as it did after the last path-to-citizenship-law in 1986. America’s hunger for cheap labor can’t be legislated away.
Is that cynical, or is that just the way things are? It may be both. Obama outraged the Republicans and everyone on the right, and did something vaguely heroic that will cheer Democrats and everyone on the left, but what did he really do? Well, he did make life easier for millions of families that won’t be torn apart now, which is humane and decent and comes at little cost, but there are those who think that those families deserve to be torn apart, as a matter of law – they deserve our contempt. That dispute, between common decency and firm and unambiguous law, will go on forever. There will be another Victor Hugo writing another Les Misérables, and then another and then another, but the underlying problem, as Posner states it, won’t go away. That hunger for cheap labor is the problem here. That makes doing the right thing nearly impossible. Obama did what he could. It will have to do. Now we’ll fight about it for a year or two.