Knight-chessNow that the House border bill is effectively dead on arrival, the waiting game begins for the next maneuver from the White House. Before leaving for the August recess, the House approved a measure that would amend the 2008 anti-trafficking law to eliminate the incentive for people to arrive here illegally and tie our immigration courts in knots. The Senate refused consideration by leaving town even before the House voted.

Large-scale executive action on immigration is imminent with one caveat: Obama’s supporters are becoming increasingly alarmed at the potential overreach of power. Last week, the Washington Post editors cautioned that “frustration over stalled immigration action doesn’t mean Obama can act unilaterally,” while further observing (that frustration) doesn’t grant the president license to tear up the Constitution.”

Background

Since 2008, the president has dismantled most interior enforcement and extended benefits to illegal aliens by use of policy memos, stays of removals, prosecutorial discretion, deferred action, parole-in-place and executive actions that have enabled him to bypass Congress and circumvent the rule of law. Few of these mechanisms have a statutory basis and all are generally restricted for limited, rare, exceptional, and temporary actions in individual cases. But DHS, under the direction of the president, has applied each of these to broad classes of illegal aliens to make sure they avoid deportation.

In 2012, Obama put into place Deferred Action for Childhood Arrivals (DACA), an amnesty for illegal aliens aged 16-31. The program grants two-year stays from deportation and work permits. To qualify, illegal aliens must have arrived in the U.S. as a child and have either graduated school or be currently enrolled. Those requirements are arbitrary; there is no basis in regulation or statute that justifies DACA. Since Congress never vehemently objected, Obama has recently declared that the program will be renewed for another two years.

Obama Will Take One or More of These Actions, Soon

  • Obama could expand the current age range and/or lower the requirements of DACA, thus dramatically broadening the scope of illegal aliens who can remain in the country.
  • 550,000 young illegal aliens have already been granted deferred action. Obama might expand deferred action to the parents or the legal guardians of each. Doing so would affect the status of 825,000 illegal aliens.
  • The president could proclaim that any illegal alien who has a U.S.-born child will be given deferred action, thus expanding amnesty to 4 million more.
  • He could say any person who has overstayed their visa is no longer required under current law to leave the country, wait ten years and then reapply. Given that 30-40 percent of illegal aliens have overstayed their visas, 4.5 million illegal aliens could be given another bite at the apple.
  • Finally, Obama could pursue his plan of establishing refugee screening centers in Honduras and bring in thousands to the U.S. If successful, the program would be expanded to Guatemala and El Salvador. The White House has already floated this plan by leaking it to the New York Times.

What Can Stop Him?

The list of what Congress can do to stop the president is shorter than Obama’s seemingly endless tactics to thwart the law. Our constitutional system provides only limited options when a chief executive abandons his oath of office by failing to enforce the law and defend our borders.

  • Lawsuit. The GOP lawsuit does not include Obama’s abuse of executive authority in the immigration realm. Instead, it focuses on the president’s extension of the Affordable Care Act’s deadline requiring large companies to provide health care coverage for employees. Yet, Obama’s immigration abuses have clearly violated statutory law and congressional intent. Moreover, they are consistent with House Speaker Boehner’s statement defending the lawsuit in which he asserted that Obama “has overstepped his constitutional authority.”  Most likely, the omission of immigration in the lawsuit may be the handiwork of the U.S. Chamber of Commerce. That organization wields tremendous influence over House leadership and while the Chamber is opposed to Obamacare, they have relentlessly pushed for amnesty.
  • Congress could strip away any taxpayer money being used to carry out Obama’s various forms of amnesty although neither the Senate (as currently aligned) would approve such restrictions, nor the president would sign the bill.
  • Congress could add the concept of “deferred action” as a statue, define it, and then limit it. Here again, that bill would be rejected by both the Senate and the White House.
  • If Republicans were to pick up large majorities in the Senate and hold its majority in the House, in 2015 they could introduce legislation that effectively nullifies any executive action the president takes. A super-majority would override an expected veto. This scenario, however, envisions a massive change in the Senate which no one expects.
  • Impeachment. Political calculus appears to make this unlikely but a massive, unilateral amnesty for illegal aliens enacted by imperial edict could ratchet up public pressure on the GOP to act. After all, Article I, Section 8, Clause 4 of the Constitution clearly states that that Congress shall have power to “establish a uniform rule of naturalization.” The Supreme Court has interpreted this to mean Congress has the authority to regulate immigration, which it defines as the “determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain.” In the event the president acts unilaterally on a grand scale, it would be impossible for anyone to defend his actions as routine discretionary power. Rather, the action would spark a full blown constitutional crisis resulting from the president repeatedly and blatantly violating the separation of powers and recklessly usurping all congressional authority to regulate immigration.

Even Obama Has Limits However

Thankfully there are still some limits to executive power. The president cannot legislate, he can’t grant permanent immigration status and he can’t issue green cards. Even Obama understands these restraints. Limitations exist for executive orders as well. Unlike legislation, future presidents can reverse executive actions and even though illegal aliens may not be deported, they still can’t get citizenship without congressional approval.