By Jason Cox
Immigration stands as one of the key divisive issues of the day. It rallies the radically-minded in a legislative clash with perhaps more furor than any other topic, and as of last week, nearly five million undocumented immigrants will no longer face fear of deportation thanks to planned executive action by President Obama. On Thursday he expressed his intention to issue a number of executive orders, venting his frustration with Republicans in Congress by stating that he will not enforce deportation of undocumented workers currently in the U.S. if they do not pass a reform bill. This had the unsurprising result of setting up another act of political theater in Washington D.C. just weeks after an electoral massacre for the Democratic Party. Many are up in arms over the implications of one man, with the stroke of a pen, making a decision that completely shut out every single elected representative of the American public.
Few can argue against the overwhelming evidence for the benefits of immigration. Liberalizing immigration policy worldwide would likely double world GDP, as well as spur entrepreneurship in this country and abroad, while having few to no economic downsides. In addition anyone must face the moral dilemma of refusing immigration from countries with few opportunities, as well as the ethical implications of a free society barring entry. This is all well and good, and the new Republican Congress should be making a significant effort on accomplishing comprehensive reform to fall in line with the free market philosophy they claim to champion. But therein lies the problem for many in the country; Congress didn’t get a say in the matter.
The Constitution explicitly grants Congress, and only Congress, the power to pass Federal laws. The limited legislative power granted to the President comes in the form of his veto pen, and the extremely controversial (and only loosely constitutional) executive order. These grant the President the ability to determine the methods by which they will enforce certain powers granted by Congressional legislation. The actual usage of this has arguably outgrown this very limited focus, and has been used to edit if not effectively rewrite entire legislation. The Obama administration has expanded their usage in the past to allow it to conduct war in Libya, grant waivers from the Affordable Care Act, and grant subsidies to states without healthcare exchanges.
The constitutionality of this particular action by the President is being debated fiercely by politicians, legal scholars, and potentially the courts. The President cited precedent by previous Presidents from Ronald Reagan, to George H.W. Bush, to Bill Clinton, and even George W. Bush as evidence of the constitutionality of his executive action. This doesn’t necessarily stand up to the facts, and besides that point, it tells us nothing about the constitutionality of the order. Legal scholar Ilya Somin of George Mason University, who is among the President’s harshest legal critics, wrote in support, equating it to discretion in numerous other areas of criminal enforcement. Cato Institute scholar Timothy Sandefur disagrees, arguing that the President is neglecting his duty to faithfully execute the law.
Whether or not the President’s actions on immigration are found to be legal, or whether one might agree with the outcome, every American should be wary of the creep of executive power. Granting the President the authority to change the letter of the law may offer a short reprieve from poorly constructed institutions, but also may inevitably lead to autocracy. The separation of powers is key to ensuring the protection of our civil liberties, and offers a check on unrestrained government interference in our lives.