For some advocates of more liberal immigration laws, the next month may be the most crucial in recent history. As Rep. Luis Gutierrez told the Washington Post, President Obama “is going to determine his legacy with the immigrant community in the next 30 days.” But while most members of the president’s party are ready to cheer executive orders bypassing Congress that will effectively legalize millions of illegal immigrants, those Democrats facing tough reelection fights know such moves will effectively decide the 2014 midterms.
The president signaled back in June that he would use Congress’s failure to pass a comprehensive reform bill as an excuse to act on his own to address the problems in the immigration system. No details of the planned moves have yet been released but, as the Post reports, many on both the left and the right anticipate that the executive orders will indefinitely delay deportation for millions of illegal immigrants already in the United States and to provide green cards for relatives of U.S. citizens. That means that those illegals who have had children since arriving in the United States would effectively be granted legal status, raising the total of those granted a form of amnesty by these measures to encompass the vast majority of those here without permission.
While opponents of immigration reform blanched at any measure that would grant illegals the right to stay in the country, let alone a path to citizenship that a green card would give them, these unilateral moves are far worse than anything contained in the bipartisan bill that was passed by the Senate but blocked in the House. That bill put heavy penalties on the illegals and forced them to the back of the line for citizenship while also heavily reinforcing security at the border. But Obama’s unilateral plans really would be a form of amnesty without any real penalty or action to prevent another wave of illegal immigration.
This is terrible policy since, as this year’s crisis at the border demonstrated, even the president’s past statements about letting illegals stay has generated a massive influx of new migrants who believe that once they get across the border by any means they won’t be sent home even if they are caught. Enacting such a measure unilaterally at the whim of the president rather than through congressional action would further undermine the situation at the border as well as undermine the rule of law.
You don’t have to oppose immigration reform to recognize the problem here. All recent presidents have used executive orders and, in fairness to Obama, his predecessor George W. Bush used the tactic extensively when it suited him. But there is a difference between chipping away at the margins where presidential authority is already established and the White House simply governing on its own as if congressional approval of legislation is a mere technicality that can be waived if the president is really sure that justice is on his side.
The notion that the president has the right or even the duty to act on his own in this fashion because the House refused to pass an immigration bill turns the Constitution on its head. Acting in this manner would trash the checks and balances of the American system and establish an essentially anti-democratic precedent in which any president could flout the will of Congress and the Constitution if he didn’t get his way.
But the danger here is not just to the Constitution. If the president decides to push ahead with these measures in the months before the midterms, he may be effectively writing off the already diminishing odds of his party holding onto the Senate. For beleaguered red state Democratic incumbents like Mark Prior in Arkansas, Mary Landrieu in Louisiana, Kay Hagen in North Carolina, or even a purple state senator like New Hampshire’s Jeanne Shaheen, executive orders on immigration will feel like a stab in the back from the White House.
Concerns over illegal immigration were already a potent issue for Republicans in states where Hispanic voters—who are more sympathetic to undocumented immigrants—aren’t a major factor. But if the president does an end run around the Constitution in order to enforce his will on immigration it will be a disaster for endangered Democrats. Candidates like the aforementioned incumbents as well as Alison Grimes, who is providing the president’s party with one of its few shots at knocking off a Republican senator, are already trying to run away from Obama. Republicans are already favored to take control of the Senate. But with a few strokes of his pen, the president could ensure a far larger GOP majority next year than most pundits are now envisioning.
If Republicans play this right, they could ride Obama’s extra-constitutional behavior to a repeat of their 2010 landslide. But there’s also the chance that conservatives could play into the president’s hands and sabotage their chance to emerge in November with control of both Houses of Congress. In my next post, I’ll discuss the possibility that the president’s decision is actually a cynical effort to entice the GOP to try another futile government shutdown or impeachment.