Much of the debate over Barack Obama’s executive action on immigration, announced Thursday, has been about his decision to act unilaterally rather than discussing the merits of the changes themselves. A NBC/WSJ poll released on the eve of the announcement found that 48 percent of Americans were opposed to Obama’s approach. Just 38 percent supported his actions, although a majority are in favor of immigration reform itself.
The White House position is that the president’s actions are not only legal but normatively justified. Obama’s stated rationale for acting alone—an option that he had previously described as outside the Constitutional powers of the president—is that Congress has failed to act, and effectively left him with no choice. Congressional Democrats have defended his reasoning, as have reform advocates and many left-leaning journalists and analysts. Some partisans—not all—have taken their defense a step further and argued that conservative complaints about process are effectively an opportunistic ruse, designed to camouflage widespread bigotry and nativism. “Try as they might to stick to the script, there’s something about dark-skinned foreigners that sends the conservative id into overdrive,” wrote Noam Scheiber at The New Republic. Even on the right, there are conservatives who are sympathetic to the notion that Obama, as president, has been faced with an unusually dysfunctional and obstructionist Congress.
Most conservatives, of course, disagree with the president’s tack. In Texas, attorney-general/governor-elect Greg Abbott responded to the announcement by saying that Obama’s action was unconstitutional, and that the state, accordingly, would sue. Setting aside the legal question, because I’m still not a lawyer, I think Obama’s normative argument is wrong. Congress is under no obligation to prioritize the president’s agenda, much less to tailor its legislation to his preferences. It’s surely politically and pragmatically advantageous for the legislative branch to proceed with awareness of how the executive branch might react, but the Constitution separates those powers for a reason. And in the case of immigration reform specifically, Obama has not made a compelling case that Congress—or Republicans, more generally—have been sufficiently irredeemable that special exceptions are normatively warranted. The fact that he proceeded last week as if such a case had been made could set a troubling precedent. I’m also put off by Obama’s “disappointed but not surprised” tone here, especially when there are justifiable reasons to bristle against his actions.
One is that the president’s recent sense of urgency is oddly belated. He promised to pass immigration reform during his 2008 campaign. He made the same promise during his 2012 campaign. In the intervening years, he made several changes to how immigration law is enforced, including, most controversially, announcing the Deferred Action for Childhood Arrivals program in June 2012; Congress’s attempt to pass the DREAM Act in 2010 had passed the House but sputtered out in the Senate. Beyond that, Obama indicated that he expected Congress to act: “My job is to execute laws that are passed, and Congress right now has not changed what I consider to be a broken immigration system.”
But the bulk of Obama’s attention, during his first term, was focused on other issues. And it would, in fairness, be churlish to criticize him for that. Presidents are busy people, and contemporaneous events made immigration reform seem simultaneously less urgent and more controversial. Between 2007 and 2010, as a result of the recession and underwhelming economic recovery, unauthorized migration ground to a halt and seemed to reverse; relatedly, struggling Americans would likely have been disinclined to focus on a major reform effort that would potentially result in greater competition for threadbare resources and stagnating wages (if only in certain regions or industries).
On the other hand, it’s churlish of Obama to scold Congress for having failed to put sufficient energy into an issue that he himself had backburnered. Also somewhat churlish is the implication that in 2013, after Obama reprioritized the issue, the bill failed because of willful obstructionism. There are surely some Republicans who oppose immigration reform out of outright nativism, reflexive disdain for the president himself, or the simple pleasure of troublemaking. Others, however, provably share some of the president’s goals and feelings. George W. Bush worked to pass immigration reform during his second term as president. Rick Perry signed the “Texas DREAM Act” in 2001—more than a decade before Obama took action on behalf of unauthorized immigrants who were brought to the country as children—and defended the law in 2011, during his brief campaign for president. Jeb Bush took some genuine political risk this year when he told Fox News viewers that from his perspective, illegal immigration is often an “act of love.”
In Congress, the “Gang of Eight” senators who drafted the 2013 bill included four Republicans, including South Carolina’s Lindsey Graham, who proceeded to shrug off accusations of “Grahamnesty” while being challenged by six tea party candidates in this year’s primary, and Florida’s Marco Rubio, who is (like Jeb Bush and Perry) widely considered to be interested in running for the 2016 nomination. Ten additional Republican senators joined them in supporting the bill in June. In the House, too, there were Republicans who would have voted for the bill, if John Boehner had allowed a vote. Republicans are responsible for the failure of the 2013 bill, and it’s fair to criticize them for that. It’s not fair to assert, as Obama did last week, that the events of 2013 proved that any efforts to work with a Republican Congress on immigration reform would be doomed from the outset.
In fact, Republicans can just as well argue that Obama was never seriously willing to work with them. The bill passed by the Senate, which was then controlled by Democrats, included a pathway to citizenship for unauthorized immigrants already in the country. That was a priority for the president, at the time; he had made it clear that the idea of passing comprehensive immigration reform without such a provision made no sense to him: “For comprehensive immigration reform to work, it must be clear from the outset that there is a pathway to citizenship.” What actually made no sense was the president’s insistence on this provision. Many Republicans were opposed to it—some out of knee-jerk nativism, perhaps, but others due to more substantive concerns over fairness, rule of law, and moral hazard. Many of these “amnesty” critics, including Ted Cruz, went on to say that they would support some kind of legal status for unauthorized immigrants already in the country.
Democrats, meanwhile, never made a compelling case for why it was so crucial that the citizenship provision should be included. Polls show that a majority of Americans support the idea of a path to citizenship. At the same time a majority of Hispanic Americans would prioritize relief from deportation over a path to citizenship, if it came to that. Those results reflect logical reasoning on the part of the public. The risk of accidentally creating a permanent class of second-tier pseudo-citizens here is mitigated by the fact that the United States, unlike many other immigrant-receiving countries, has birthright citizenship. Relatedly, for reasons explained by Reihan Salam at Slate, birthright citizenship means that extending legal status to unauthorized immigrants, even on a temporary basis, can yield “a generational challenge”–a challenge we may be prepared to meet, but might as well take seriously. Meanwhile, it’s not clear how many of the unauthorized immigrants currently in the country even want to stay permanently. The drop in remittances to Mexico during the recession suggests that many Mexican immigrants (which is the country of origin for roughly half of the unauthorized population) went home in response to labor market conditions. And even if every unauthorized immigrant in the country is yearning for American citizenship, it doesn’t follow that Congress was bound to accommodate them. In 2009 plenty of progressives hoped for a single-payer health care system. What they got was Obamacare, which they have since defended, if not celebrated, as an improvement over the status quo.
In other words, a path to citizenship may have been nice, but a comprehensive reform bill without such a provision would probably have been more tolerable. It might even have passed. We’ll never know, because only after the 2013 effort failed did Obama allow that he would consider such alternatives. The pathway to citizenship might not have been a “poison pill,” as Cruz alleged at the time. Obama’s stubbornness on this point, however, complicates the premise that the president made a good-faith and serious effort to work with Congress, only to be thwarted by his irredeemable antagonists, leaving him no choice but to reluctantly undertake the unilateral actions that he had previously deemed outside his proper authority.
Republicans can make a similar argument about their longstanding argument that border security should take precedence over illegal immigration. Democrats have generally been dismissive of this line of argument. In his 2012 State of the Union, Obama alluded to it as an “excuse,” and one that his administration had already addressed, in order to shame the opposition into getting serious about immigration reform.
For years, frankly, I agreed with the Democrats on this point, because Republicans rarely specified the standard by which they would deem the border appropriately secure. But my perspective shifted slightly this summer, after a spike in migration from countries other than Mexico left the Border Patrol and local law enforcement in the Rio Grande Valley demonstrably overextended, and put vulnerable immigrants, many of them children, at risk. That being the case, the state’s decision to deploy the National Guard as part of a broader border “surge” was a reasonable response. Obama supported the idea too, although he told Perry in July that his ability to help in practice was contingent on whether Congress would pass a pending funding bill.
The Congressional Republicans who opposed the 2013 reform effort, of course, weren’t concerned about a border crisis that emerged in Texas the following year. However, the fact that Texas’s leaders agreed to allocate scarce government resources in response to the 2014 crisis shows that for some Republicans, at least, the professed concerns over border security are more than a fig leaf. “Are we more interested in politics or are we more interested in solving the problem?” the president asked, rhetorically, after his July meeting with Perry. On Tuesday, two days before Obama’s executive action, Perry, joined by David Dewhurst and Joe Straus, released a statement announcing an extension of the surge, on the basis that it had been successful. The agreement between those three, it should be noted, didn’t directly involve the entire Legislature, which wasn’t in session, and the surge itself was criticized by most Texas Democrats. But at Straus’s suggestion, the deal is designed so the Lege will be able to weigh in on the issue when they return. That may be because even in Texas, with its limited government and minimalist voter turnout and so on, people care about process.
Americans do, too, hence the polls showing that 48 percent of Americans are opposed to Obama’s approach, even though at least some of them support his policy goals here. (And as an aside, let’s give Americans some credit for the impulses expressed in these polls; there is no other country in the world that shares a border with a developing nation while simultaneously evincing such widespread concern about what would be best for the unauthorized immigrants themselves. That’s nice of us.) These critics may be willing to overlook Obama’s methods in light of what they see as the greater good—especially if Republicans respond by angrily overreacting, as some are prone to do.
What’s troubling is that many of the president’s defenders, presumably in solidarity with his goals, are also accepting and extending his justification for his methods. That’s unfair to Republicans, for the reasons laid out above, and may make polarization worse. It’s risky for Democrats, unless they’re prepared to see the same logic invoked by any future president. And it’s potentially ominous for all Americans, for several reasons. It’s a stretch to argue, as Cruz has done, that Democrats got such a drubbing in this year’s elections because the people were furious about the president’s views on immigration specifically. But it’s far more absurd to argue that Democrats lost so badly because voters are clamoring for more of the Obama agenda, by any means necessary. In acting alone, then, Obama is effectively saying that he doesn’t much care what voters think.
And if Obama’s high-profile work-around sets a trend among future frustrated presidents, we’re going to be at risk of worse government going forward. The branches of government are supposed to check and balance each other; presidents who go around Congress are blowing off an important safety mechanism. Also, presidents can’t actually legislate. As contentious as Obama’s executive action is and as worthy as his goals may be, the effects of his action are necessarily limited. In 2013 he made the perfect the enemy of the good. Last week he offered an off-brand Band-Aid that won’t stay on and leaves a gummy residue on your fingers.
At the risk of being accused of nativism, there are better approaches available, and Texans have used them. “The only real road to progress for a free people is through the process of law, and that is the road that America will travel,” said Lyndon Johnson, signing the Civil Rights Act of 1968. “So I urge the Congress to enact the measures for social justice that I have recommended.” Those are the words of a president who wasn’t afraid to play hardball, who cared about civil rights, and who understood that the legislative process might be slow but that its results would be resilient. That, of course, was a different time. But the immigration reform LBJ signed in 1965 is still in effect fifty years later. Obama’s won’t be.
