Immigration

The Complicated Politics of Obama's Delayed Action on Immigration

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Whitehouse.gov

Back in June, President Obama publicly declared that because Congress had failed to pass an immigration overhaul bill, he would take on the responsibility himself. "I'm beginning to fix as much of our immigration system as I can on my own, without Congress," he said. He would act, on his own, through executive actions—and he would do so by the end of the summer. Reports indicated that Obama was considering granting provisional legal status to as many as half of the nation's illegal immigrants.

Looks like we'll be waiting a little while longer. At the end of last week, amid mounting concerns that executive action on immigration could hurt Democrats in tight races in this year's mid-term election, the White House made known that it would stall the move until sometime after the election.

Republicans have decried the move as another illegal executive action, and immigration activists are worried that it may never happen at all. Here are a few thoughts on the potential move and the complicated politics surrounding it.

It's probably legal. As Jonathan Adler, a law professor at Case Western Reserve University, recently wrote at The Washington Post, "immigration law is an area in which — for good or ill — Congress has given the executive wide latitude." Whether or not you think it's good policy, he says, "there's a strong case the actual law is on the president's side." The Reason Foundation's Shikha Dalmia explains some of those reasons here.

The delay is almost entirely political. The administration is barely even trying to pretend otherwise. The opening of an unnamed White House officials email to Washington Post blogger Greg Sargent reads, "the reality the President has had to weigh is that we're in the midst of the political season." Another official tells the New York Times that the White House is reacting to the "political hothouse environment."

The fact is that the move is almost entirely about concerns that movement on immigration now could jeopardize Democratic chances in close Senate races this November. Those races are going to hinge on turnout—and a controversial, go-it-alone move from President Obama on legalization could bring more Republican voters to the polls.

The potential flip side of that, of course, is the move could depress turnout amongst pro-immigration Democrats. And it's clear that immigration activists are not happy. The administration says the move is still coming, but there's skepticism that it could be put off permanently. "All the progress we've made over two years was destroyed in six weeks," ImmigrationWorks USA head Tamar Jacoby told The New York Times. "Given the string of broken promises from this president to the Latino community on immigration, there is a real question as to whether he will follow through," America's Voice director said to the paper.

But the administration seems to have decided it's worth the risk. Basically, the White House is betting that the GOP's negative response to a pre-election announcement would be more significant than whatever effect this has on Democratic turnout.

It's good for immigrants—but it may not be good for long-term immigration politics. There's no question that the immigrants granted legal status by the move would benefit. But I'm less confident that it will have a positive effect on the immigration debate as a whole. Sweeping unilateral executive action on such a controversial issue could well polarize the immigration debate further, and make it harder to find a workable, sustainable long-term solution.

It's not a perfect parallel, but you can look at what has happened with Obamacare, another big-deal policy that was passed with no bipartisan support over the loud objections of the opposition party. Democrats thought that opposition would quickly fade, but it hasn't. Instead, it's settled in. To a lesser extent, the same dynamic has played out with climate change. Democrats have pushed for sweeping legislation and unilateral executive action, and Republican opposition, which had softened somewhat during the Bush era, has intensified.

On the other hand, if you look at an issue like loosening marijuana restrictions, the opposite is true. It's an issue where we've seen some support from both Republicans and Democrats, and where, instead of sweeping national change, we've instead seen incremental local experimentation. Yes, it's a slower process, but that allows for a kind of adjustment period, which can be helpful. The result is that national support for legalization has grown rapidly, with 58 percent of adults now saying they favor legalization, and 39 percent saying they strongly favor it, according to Civic Science poll released last week. It's a local, experimental, incremental approach, and the public is going along with it. 

The Obama administration understands that lack of public buy-in is a problem. "I want to spend some time, even as we're getting all our ducks in a row for the executive action, I also want to make sure that the public understands why we're doing this, why it's the right thing for the American people, why it's the right thing for the American economy," President Obama said on NBC's Meet the Press over the weekend. The question, though, is whether a little more explanation and a little more time is really going to help.

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  1. Is it actually legal for Congress to pass its constitutionally mandated responsibilities to other branches?

    1. No there isn’t. And deferring action is not granting status. Actual status confers due process protections. If I have a green card the government can’t take it away from me without going to court. What Obama is proposing to do is just tell some people “hey I won’t ever act to deport you”. The problem with that is that what the King gives, the King can later take away. Obama figures, fuck no future President would really have the balls to deport these people. And maybe he is right. Time will tell. But what he is doing may have the practical effect as amnesty but it won’t have the same legal effect.

      1. Obama figures, fuck no future President would really have the balls to deport these people.

        I don’t know if he cares.

    2. Well if we’re going to play that game..

    3. Congress can delegate to executive agencies as long as they supply an articulable guiding principle

  2. The Obama administration understands that lack of public buy-in is a problem.

    Gee, you mean most Americans (including most Hispanics) don’t want to turn the US into a Third World country? What a shock! So of course the plan is to wait until just after an election. Doing it before the election never made political sense. It’s better to take action to destroy the country at a time when voters will have to wait two years to express their disapproval.

    1. Like we turned into Ireland because of the mass immigration from there once .

      1. Boston did turn into something like a bit like Ireland in some ways. But then, the Irish didn’t come by the scores of millions in a relatively short time, and they spoke English, and Ireland wasn’t the Third World at the time, and we did not have the current multiculti apparatus in place.

        1. “the Irish didn’t come by the scores of millions in a relatively short time, and they spoke English, and Ireland wasn’t the Third World at the time, and we did not have the current multiculti apparatus in place”

          I think everything but the part about speaking English in that sentence is inaccurate

          1. Irish Immigration to United States (1820-2004): 4,787,580: in other words, about a third of the current number of illegals alone.

            Even then Ireland was more Second World (better off than Honduras or Guatemala).

            And there were no pro-immigrant racial preferences then. So it’s all accurate.

            1. The United States population was a lot lower in those days. Less than a tenth the current population at the beginning of that period, and still well below half by the time Irish immigration mostly subsided.

              And I would say that Ireland was pretty Third World during the Potato Famine (although the term is anachronistic). Really, you could apply that to pretty much the entire world pre-20th century for the most part, and most people everywhere were pretty poor. And most of Latin America is Second World (Honduras and Guatemala are two of the poorer countries, but represent a small fraction of immigrants, and are still better off than many countries in Africa or Asia).

              1. Irish immigration was never (AFAIK) anything like the current wave, which is (IIRC) on course to make the US about 40% Hispanic in 40 years or so.

                1. The numbers I’ve seen are about 30%. Also, it’s pretty hard to predict demographic trends that far out (I’m sure that projections back then would have put the number of Irish much higher than there ended up being). Intermarriage also complicates things in both instances, and someone can identify as Hispanic even if they only have one parent or grandparent who was Hispanic and be counted the same as someone who just arrived from Mexico.

                  Comparing just Irish to Hispanic is also a bit problematic, since Hispanic includes many different countries, and Ireland was hardly the only country that people opposed immigrants coming from. If you throw in Italians, Jews, and Poles, you’re up to somewhere around 75 million people identifying as one of those things – over a third of the white population.

            2. Does no one remember that the Second World is supposed to be the Communist bloc?

              1. Perhaps I am using the term incorrectly. I just mean that even at its worst in recent centuries, Ireland was (relatively) far above Honduras etc., where many current immigrants come from.

                1. Third World originally meant the Non-Aligned countries. Since these countries were often former colonies and quite poor and the fact that after the USSR collapsed the term “Second World” died out it become another way of referring to poor or underdeveloped countries.

                2. Relatively, only due to the fact that the wealthiest countries today are a lot wealthier than they were back then.

    2. “It’s better to take action to destroy the country…”

      Barf.

      1. Oh, an intellectual, eh?

        1. Medicare, SS, and the military are destroying this country… all the fault of white America.

          As Bo posted above, your comment is so full of idiocy, commenting a second time seems generous.

          1. Bringing in tens of millions of poor people is far worse for the country then “the military.” And the fact that “white America” set up a welfare state headed for bankruptcy does not excuse ignoring the fact that mass immigration is hastening that bankruptcy.

    3. I don’t think he ever planned to move before elections anyway, given that it would bring a lot of pissed off Rs to the polls. He was just hoping that suggesting imminent action would push some Republicans to jump the gun and start talking impeachment, in order to bring a lot of pissed off Ds to the polls.

  3. Obama is about to actually experience the wages of being a lying piece of shit for his entire Presidency. Since he is such a liar, no one on either side believes him or trusts him. The pro open borders people feel like they are just being lied to again and don’t trust Obama to come through after the election. The anti-open borders people assume he is lying and thus his pledge to put off action won’t help Democrats running for office on bit.

    1. Obama has no principles other than political gain, and you’re right that this move will fail there too

      1. They could have had Amnesty and immigration reform in 09 or 10 when the Democrats controlled the Congress. Enough Republicans would have signed up, it would have been unstoppable and bipartisan. Yet, Obama didn’t lift a finger to do it.

  4. It’s probably legal

    Ah principals ahead of principles.

    1. And I seem to have missed that “If the President really, really wants to change a law, we don’t have to go through any of that icky legislative process” part of the US Constitution.

      1. It’s in the “if a law is too complicated to enforce you can alter it at will” clause.

      2. … it often gets left out of the classes on the Constitution in officer training.

    2. You might want to read Adlers analysis, he’s no big government or Obama apologist by any means.

      1. Because that and not his slavish support for open borders are what’s important for examining his biases in this case.

  5. Smart move to delay any kind of executive action. He should shelve the idea entirely. If Obama implements something that looks anything like “amnesty” without involving congress the red team faithful would go absolutely bugshit nuts. It would make the fallout from Obamacare seem tame. They will go nuts over anything like amnesty, mind, but their anger will be diffused somehwat if republican congress members are involved.

    1. A Republican Congress approving Amnesty very well might split and kill the Republican Party. An Obama executive amnesty would unite the party and the majority of the country against the Democrats.

      Also, an executive amnesty would not do the big money tech people a bit of good. They don’t care about poor illegals. They want more legal cooly labor brought in from India and China under the HB1 program. Executive Amnesty, by poisoning the well for immigration reform, would kill any hope of that.

  6. regardless of where one stands on this issue,

    i believe that this would be a political suicide vest for Democrats. The backlash against unilateral executive action will be tremendous. it is simply an issue that too many people feel powerfully about, such that legal action sans the mandate/imprimatur of consensus will reek of Imperial Decree

    like Dems who hate hilary, i also suspect there is a large, silent group of anti-immigrant Dems that have been largely ignored

    I also think there are massive unforseen budgetary implications for ‘unilateral amnesty’ that no one has yet really accounted for.

    1. like Dems who hate hilary, i also suspect there is a large, silent group of anti-immigrant Dems that have been largely ignored

      I suspect you are right. And here is how you know you are right. When the Democrats held both houses of Congress, including 59 votes in the Senate in 09 and 10, they never even tried to pass immigration reform. There is a sizable chunk of Chamber of Commerce Republicans who would have voted for yet. Yet, they didn’t do it.

      To me that means a good number of Democrats didn’t want to.

    2. Also, I think that unilateral amnesty would be the final “go fuck yourself” to the black community.

      1. I don’t think it would really register in that way. It will be the Democrats siding with the teachers’ unions over urban blacks regarding school choice that does that, if anything will.

        1. This is different. You to remember most urban school teachers are black. A lot of blacks view schools as jobs programs. So that issue is much more complicated than this.

      2. I have seen numerous surveys that indicate that numerous Democratic voting blocks do not support amnesty, plus a number of anecdotal accounts, e.g. “My father is a life-long Democrat, but he’s now sworn to vote Republican for the rest of life because of the border crisis.”

        It’s too bad many libertarians cling to this one plank in the platform, which will cause all other planks to get lost. The Democrats are electing a new people, in the same way Labour is trying in England: the more poor non-whites they can import, the firmer their grip on power. Claiming that “11% of Hispanic millennials are libertarian” is clutching at straws.

        1. The problem is that the Reason staff wants a new population too.

          1. No, I think they’re just blind to anything but ideological principles and pure (but narrowly-considered) economics. They don’t want to consider language and culture, and simply ignore the welfare and other costs of importing millions of peasants, not to mention criminals, gangsters, morons, and people with contagious diseases.

          2. That’s not fair. They are only doing what their big donors demand of them. I mean sure a few are probably like Byran Caplan and see open borders as a way to stick it to the guys who “bullied” by stealing all the hot girls, but mostly they are piping the tune the are paid to play.

        2. We shouldn’t ape the Democrats short term thinking. The children of Irish immigrants went for Reagan. Heck Asians, including foriegn born Asians broke GOP until the Nativists took over the party.

          1. So let me get this straight, you think Asians vote not based on the issues that would effect them or the nation they chose to live in over the land of their birth, but on the basis of how Republicans might hypothetically treat their relatives back home. Because you kept using the word nativity (I get it emotions easier than logic we all do it) when you mean immigration restrictionist. Exactly what threat does a Republican nativist present to Asian living in America? Because “I can’t bring my entire family here” isn’t a serious complaint.

    3. You’re wrong.

      Obama’s bloc has given up on the many whites that such a move would anger. He won in 2012 because of incredible minority turnout when many whites stated home. His not acting thumbs those that put him over in the eye, and as John correctly notes he was never going to appease those who would be upset by it

      1. I suspect this would give a lot of whites a reason to show up this time, which is Jordan’s point. Moreover, a lot of Democratic supporters don’t want this. This issue divides and pretty destroys the Obama coalition. That is why they didn’t act on it when they had the power. Doing it now is going to hurt them badly.

        1. Which part of ‘the Obama coalition’ of very liberal whites, single women, students and minority groups is going to be upset about this?

          You’re thinking of Bill Clinton’s coalition, but Obama is very different (to see how different, think W VA)

          1. Blacks, and the 35% or so of the working white population that the Democrats still got and unions.

            Again, if immigration reform were the key to the permanent Democratic majority, they would have done it in 2009. They didn’t do it because they knew it would have killed them in 2012.

            1. You’re smoking something to think blacks would be angry with Obama or the Dems over this.

              And unions are increasingly pro immigration

              1. The blacks are the ones most affected and the ones most anti open borders. Yes, they will be angry and this will have a huge effect if for no other reason than it will make getting black turnout to anything near 08 or 12 levels impossible.

              2. More and more blacks are showing up at anti-illegal immigration rallys. Blacks are sick of the fact they are losing out to Hispanic illegals and they are sick of La Raza types comparing illegal immigrants to the black civil right s struggle.

                Blacks know they belong here and illegals don’t.

          2. Maybe you missed it, but Obama is the first black President and the historic turnout among blacks was a big reason why he won.

        2. Obama has always been more of a self-centered ideologue than a good Democrat.

          1. Yes. Unlike the Clintons who are real company men, for lack of a better term, Obama is all about Obama. He will turn them into a regional party that wins in a few dark blue states and college towns and not give a shit.

            1. If so, the Democrats will have “let him down.”

      2. Bo Cara Esq.|9.8.14 @ 4:30PM|#

        You’re wrong.

        You didn’t actually say anything that i was “wrong” about. You just said that Obama has given up on a certain group. Which is besides the point.

        1. You’re wrong that any group that wasn’t already going to vote against him would arise if he did this. All it might do us alienate proven supporters

          1. you base your conviction on what?

          2. whatever your niggling – my point was that this is a bad move politically and will have lasting negative consequences for his party.

            I think you are wrong that there are any benefits whatsoever (politically) to any executive legal action on immigration without broad-based political support.

            Of course, you’re probably not actually saying that, but since your M.O. is to argue with things you pretend other people say, I figured I’d just play along.

  7. One really can’t overstate what a horrible precedent this would set. This is the President saying that he is just going to refuse to enforce a federal law he doesn’t like. This is no different than if Eisenhower had refused to federalize the National Guard at Little Rock and said “sure the courts say this and Arkansas won’t follow it, but I don’t think I am going to enforce federal law here”. If the President has the ability to effectively nullify any law he doesn’t like by choosing not to enforce it, then we have no law.

    1. One really can’t overstate what a horrible precedent this would set.

      But it involves something Reason likes so it can’t be all that bad since libertarians, unlike the Left and Right, put principles ahead of principals.

      1. That’s funny, the establishment left and right are pretty hot on immigration too. Fortunately, the libertarians are an alternative to…. Uh, nothing much….

    2. Exactly this is Andrew Jackson sneering “He’s made his ruling now let him enforce it.” But maybe that was only bad because it hurt the Indians.

    3. In general it would be better if the government enforced fewer laws, no?

      1. No, it’s not. The executive branch should be required to enforce all laws that are on the books, without picking and choosing; that includes all bad laws.

  8. How can you exercise prosecutorial discretion on an on going crime? The crime is not sneaking across the border the crime is being in the country illegally. Can a prosecutor decline to prosecute a kidnapper before said kidnapper releases his victim? Moreover, prosecutorial discretion was never meant to apply to a case of crimes it was only meant to apply on a case by case basis.

    1. well we have some lawyer who has provided a “legal opinion”. If that isn’t good enough for you then what is?

    2. Because immigration law is not criminal law, things don’t work in quite the same way.

      There is no “prosecutor” in immigration law. Instead, there are a variety of agencies under the jurisdiction of either DHS or the Department of State. And “prosecutorial discretion” can refer to the application of discretion at any stage of proceedings, including when ICE initially apprehends, during removal proceedings, or even after an Order of Removal has been issued. Google the Morton Memo if you’re interested in the factors that are considered.

  9. Yeah, it’s so complicated. Libertarians hate government overreach, unless it accomplishes something they want done too.

    1. New Normal|9.8.14 @ 10:40PM|#
      “Yeah, it’s so complicated. Libertarians hate government overreach, unless it accomplishes something they want done too.”

      New lefty asshole shows up with tired old lies.

    2. You’re describing liberals. Libertarians just want smaller government, period.

      1. Yep. Even though I like the result, I still object to Executive overreach, just like I did when Bush did it.

        Of course, most of the liberals at that time were still screaming about Karl Rove, since they’re just fine with an imperial President, as long as he’s their guy.

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  16. I’m in favor of more open (and more libertarian) immigration policies.

    I also think that Obama doing this by unilateral executive order is just about the worst way to go about it…

  17. Obama can play this kind of political game because he knows Latinos and immigrants will not defect (to GOP, libertarians, etc) over the delay. In some states, their votes aren’t enough to decide the election. Plus, immigration is not a high priority issue for most voters.

    Polls show most Americans are open to some sort of amnesty, so why doesn’t Obama just order an executive order now? Because polls also show that Americans want more border security, tighter immigration enforcement, and welfare reform in return, and they won’t be happy if the president doesn’t deliver on that. If he agrees to that, then he angers his own base.

    It’s safe to conclude (by now) that most of the unaccompanied minors who crossed the borders were lured by Obama’s immigration policies. Bush passed some laws that protected minors involved in human trafficking, which doesn’t concern most of the kids who recently detained at the border. Americans don’t think their country can be the world’s police or the world’s orphanage. They became more libertarian in that regard.

  18. Obama isn’t “pro-immigration”. A pro-immigration president would tell the unions to stuff it, get rid of minimum wage laws and unearned public insurance programs, make it easy for businesses to hire the workers from abroad they want to hire, and make it easy for people to come here and work.

    Obama is merely using illegal workers as pawns to foster racism, play identity politics, and breed a new generation of people dependent on government.

  19. The immigration problem is caused by people fleeing the violence and corruption of the drug war.
    Simply ending the drug war will go a long way to reducing the immigration problem.

    1. Simply doing what Harry Browne suggested, taking down the ‘free lunch’ sign at the border would go a long way also. Is partaking of government largesse considered economic opportunity? Nary a word lately about how the policies of the Mexican government cause most of this mess. Government policies cause things such as oh, say, mass genocide and famine, this is just more subtle.

  20. If we don’t take down the ‘Free Lunch’ sign we are just creating refugee camps here.

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