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Volokh Conspiracy

Obama's executive order on immigration is good policy, as well as good law—but not quite as good as it may seem


In my last post on Obama's new executive order on immigration, I argued that it is legal. In this post, I suggest that it is also good policy. But its effects are unlikely to be as great as advocates hope and opponents fear.

By at least temporarily forestalling deportation of up to 5 million illegal immigrants, it gives them an opportunity to better their situation, and lifts the threat of deportation back to Third World poverty and oppression. This helps move immigration policy in the direction of taking immigrants' rights and interests seriously. We should not forcibly consign people to poverty and misery except in rare cases where doing so is the only way to prevent some even greater harm.

No such harm is caused by exempting these people from deportation. For reasons I discuss here, I am not much moved by arguments that illegal immigrants committed some great wrong simply by violating the law against entering the US. At the very least, if it is permissible to use executive discretion to forego prosecution of millions of college students who illegally used marijuana on campus, there is a much more compelling case for using it to spare people whose only illegal action was fleeing terrible conditions in their home country.

Because Obama's executive order does not allow the immigrants in question to become citizens and does not make them eligible for federal welfare benefits [though as noted in the update below, some are eligible for the earned income tax credit], there is little chance that it will either cause harmful "political externalities" by creating new voters who support bad policies, or grow the welfare state. In any event, the empirical evidence suggests that increased immigration (even when legal) either has little effect on the size of the welfare state either way, or actually decreases it.

Despite its important positive aspects, Obama's new policy is unlikely to have as great an impact as it might seem at first glance. Most of the people it exempts from deportation probably would not have been deported anyway. Only a relatively small percentage of the 11 million or so illegal immigrants present in the interior of the US actually get deported. Most immigration law enforcement takes place at the border, and Obama's order does little to liberalize policy there.

The order does provide those it covers with a measure of security. There is an important difference between a small but still significant chance of getting deported and no chance at all. But that security is only partial, since the order is not a law, but an exercise of executive discretion. It can be reversed at any time, either by Obama himself or (more likely) his successor. Thus, Obama is only partially right when he claims that his order allows those it protects to "come out of the shadows." They could still be forced back into the shadows at any time. That looming threat diminishes the extent to which they can truly live normal lives.

The order may also affect Obama's reputation on immigration issues, strengthening the perception that he is pro-immigrant. But it is important to recognize that Obama's legacy on these issues is a lot more mixed than many people realize. Yesterday's actions and his previous order protecting people who were brought into the country illegally as minors are important pro-immigrant policies. On the other hand, Obama has also presided over a massive increase in deportations and—even worse— continued an ongoing major increase in imprisonment of immigrants for unlawful entry. It is also worth noting that Obama could probably have pushed through a wide-ranging immigration reform bill had he made it a priority when the Democrats had large majorities in both houses of Congress during his first two years in office. He instead chose to prioritize Obamacare.

The administration's anti-immigrant policies have not attracted nearly as much attention as its pro-immigrant ones. Obama himself does not like to trumpet the former, while his political opponents are mostly interested in portraying him as too soft on illegal immigration, rather than too harsh. But that is of little comfort to the tens of thousands of people imprisoned or deported.

Finally, I think that co-blogger David Bernstein is at least partially right to argue that Obama's actions, while not illegal, may undermine some of the unwritten norms of American politics. In general, a major policy change like this should be done with congressional approval. Of course, Obama's defenders can make the powerful response that his departure from norms is a response to similar departures by House Republicans. Immigration reform might well have gotten through Congress, but for House Speaker John Boehner's adherence to the "Hastert Rule", which prevents bills from coming to the floor unless they are supported by a majority of the majority party, not just a majority of the House as a whole. Like Obama's actions yesterday, the GOP's adherence to the Hastert Rule is perfectly legal. But it does undermine the norm of majority rule in the House.

In times of increasing political polarization, both sides tend to push the limits of unwritten rules. So it has proved with Obama and his Republican adversaries in Congress. I doubt that any one decision by either the president or the GOP can change that. For that reason, among others, I think that the benefits of yesterday's decision clearly outweigh the incremental damage to political norms. The mutual hostility and distrust between Obama and the GOP makes it unlikely that any broad immigration reform bill can get through Congress during this administration. But that was probably true even before yesterday.

UPDATE: I think that up to 5 million is a better estimate for the number of people potentially affected by Obama's executive order than the figure of 3.7 million that I quoted originally. I have revised the post accordingly.

UPDATE #2: Although the immigrants covered by Obama's order will not be eligible for conventional welfare benefits, some will be eligible for the earned income tax credit—if they file tax returns. However, the net fiscal impact is likely to be slightly positive, since they would end up paying more money in additional taxes than they would get from the EITC.

UPDATE #3: Although Obama has presided over a major increase in formal "removal" deportations, there has been a decrease in "returns"—informal deportations under which the immigrant "voluntarily" leaves without suffering any legal consequences, such as being placed on a watch list by the ICE which is likely to subject them to harsher punishment should they enter the US again. If you combine the two figures, Obama's record does not look as bad as George W. Bush's does, but the increase in "removals" is still significant because they impose a greater burden on those targeted than returns do.