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A Slippery Slope On Immigration

Ruth Marcus on

WASHINGTON -- Every Democrat should be nervous about President Obama's plan for unilateral action on immigration reform.

Not because of the impact on an already gridlocked Congress, or because it risks inflaming an increasingly hostile public. Democrats should be nervous about the implications for presidential power, and the ability of a future Republican president to act on his or her own.

Note that I said nervous, not opposed. In this situation, the executive power devil is in the details of what the executive actually does, both the scope of his actions and the legal justifications for them.

For me, the question is one of double containment: First, is there a limiting principle that would constrain the president's authority to effectively legalize everyone in the country? Second, is there a limiting principle that would constrain future presidents inclined against enforcing other laws with which they don't agree -- and on which they've been unable to convince Congress to act accordingly?

The general White House argument in defense of unilateral action, spelled out for me by a senior administration official versed in the legal details, boils down to the general power of prosecutorial discretion, combined with particular provisions and practices embedded in immigration law.

The official acknowledged that there are clear limits to presidential power -- he can't hand out green cards or create a pathway to citizenship. But the official also noted that presidents have broad authority to set enforcement priorities in immigration; after all, there are about 11 million undocumented immigrants and budgetary capacity to deport perhaps 400,000 annually.

 

In addition, there is a bipartisan history of presidents taking significant, unilateral action to address humanitarian problems in the absence of congressional solutions. Thus, George H.W. Bush in 1990 extended protection in the form of deferred deportation and authorization to seek employment to the spouses and children of individuals who had been granted legal status by a new immigration law.

That relief, covering about 1.5 million, amounted to about 40 percent of the undocumented population, roughly equivalent to the share that Obama is considering protecting. In the Bush case, the official noted, the Senate had passed a measure that would have covered the spouses and children, and the House had failed to act.

Sound familiar? Actually, not. In 1990, Bush's action created barely a political ripple.

Similarly, presidents of both parties have granted what's known as "parole in place" or "deferred enforced departure" to provide relief to particular classes of undocumented immigrants.

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