Yesterday President Obama announced he would be taking unilateral action on immigration reform after being told by Speaker John Boehner that the House of Representatives would not be considering an immigration reform bill this session. "I don't prefer taking administrative action. I'd rather see permanent fixes to the issue we face… I would love nothing more than bipartisan legislation to pass the House, the Senate, land on my desk so I can sign it. That's true about immigration, that's true about the minimum wage, it's true about equal pay," the president said at the Rose Garden yesterday, once again conflating his political preferences with Congress' prerogative.
The three branches of government, as the constitutional law professor-cum-president surely knows, are meant to be co-equal. That the president would like Congress to do something doesn't obligate Congress to act. Congress' failure to act, in turn, doesn't create any new right or opportunity for the president to act. This is all stuff it would be impossible for the president not to know. Nevertheless, it's not about what he knows or doesn't know or even about the substance of the rhetoric but rather just the rhetoric and the emotional reactions it can produce.
To that end, President Obama's announcement is rather unsubstantial. What will the president do about immigration six years after taking office and while presiding over more deportations of illegal immigrants than any other president in U.S. history? He's going to ask his attorney general, Eric Holder, and the secretary of homeland security, Jeh Johnson, to move "appropriate resources" from the interior to the border in order to "keep our border secure." This, for those keeping score at home, is actually the president's obligation. The executive branch is supposed to enforce the law. The White House has a lot of leeway on how federal law enforcement assets are deployed—he didn't need Congress to secure the border and could have asked for resources to be redeployed at any time in the last six years. Instead, his administration has been busy running border security checkpoints as far as 90 miles from any international borders.
What else will the president do as he promises to act "aggressively" on immigration reform? He's going to ask Holder and Johnson to recommend some things. He's hoping to hear back by the end of the summer. He hasn't asked them already—it doesn't sound like he asked them after deciding to declare he was taking unilateral, nor any time in the last six years as he's paid lip service to immigration reform being an important issue. So now the president's top men will spend the summer brainstorming solutions to immigration reform.
From a president whose taken the idea of an imperial executive branch to new heights—military actions are taken without even going through the motions of seeking Congressional authorization, waivers are granted on federal legislation ranging from No Child Left Behind to the Affordable Care Act, kill lists are decided on Tuesdays—comes the most flaccid of "action" on immigration reform. President Obama and his White House team failed to negotiate a deal with Congress on immigration. Now it looks like they're trying to fail all on their own, too.