November 20, 2014 saw the birth of a two-year legal storm that would rage its way to the Supreme Court. That was the day President Barack Obama issued an executive action called Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA.
Like the name suggests, DAPA aimed to grant deferred action — a type of lawful presence — to a class of illegal immigrants. It would exempt them from deportation, grant them access to renewable three-year work permits, and confer upon them eligibility for Social Security and Medicare benefits.
The President also announced an expansion to an earlier executive action: Deferred Action for Childhood Arrivals, or DACA. Together, this expansion and the introduction of DAPA would have granted deferred action to 4.4 million illegal immigrants, according to an estimate by the Department of Homeland Security.
The action had a fatal flaw: It messed with Texas — along with 25 other states, which joined the Lone Star State in a lawsuit against the U.S. government. After the states won victories in U.S. District Court and the 5th U.S. Circuit Court of Appeals, United States v. Texas landed on the bench of the Supreme Court.
Its decision came in nine words: “The judgment is affirmed by an equally divided court.”
The terse statement offered no legal opinion from the justices on either side of the vote, nor did the Court make public which side individual justices took. Because of that opacity, determining which arguments the Court found legally compelling is an act of guesswork.
A good guess is written in Article II, Section 3 of the U.S. Constitution, which states that the President “shall take care that the laws be faithfully executed.” Known as the Take Care Clause, this provision was a key issue in the case1 because it forbids the President from ignoring congressional laws or enforcing them selectively — it forbids, for instance, an executive action that would exempt 4.4 million U.S. residents from the law.
The four justices not persuaded by the Take Care Clause had plenty of legal loopholes to squeeze through. Perhaps they felt that Texas did not have the standing to bring the case. Perhaps they felt that the executive action was actually consistent with the law, as Congress awards limited funds to immigration enforcement and it is necessary for the executive branch to appropriate them somehow.
But the Constitution is clear. Selective enforcement of the law is not meant to be among the President’s powers — and for good reason. If it were, the President could ignore any law he or she did not like, a sort of veto that Congress would be powerless to overturn. The most important issue at hand is not the content of President Obama’s executive action; whether DAPA was good or bad for the country is immaterial. What matters is preserving our government’s separation of powers, which ultimately benefits Americans of all political leanings. Liberals would rightfully balk if the next conservative president turned a blind eye to legally authorized welfare payments or restrictions on gun ownership — and should therefore celebrate that the current administration’s action was stopped, lest a precedent be set giving future presidents the same extraordinary power. For imagine the chaos of transition if every new administration cherry-picked which statutes to enforce out of 23,000 pages2 of federal criminal law. Each election would be a policy revolution.
I have heard from Machiavellian activists, commentators, and personal friends that the ends of DAPA justify its means. But even if there were a place for that philosophy in U.S. law, DAPA was not a near-victory for pro-immigration forces. Granting deferred action and work permits to illegal immigrants will only cause more people to immigrate illegally. This is not, of course, an indictment against the moral character of immigrants. As Jeb Bush puts it, immigration — even illegal immigration — is often an act of love by people wanting to provide for their families. And if a person knows she need not fear deportation, then her family only stands to gain when she comes to America illegally.
An influx of illegal immigrants drawn by the reasonable belief in eventual amnesty would likely embolden anti-immigration stalwarts. Worse, it ultimately hurts tens of millions of would-be immigrants trying to come to the country legally. It takes 15 years for a family from Mexico to immigrate to the U.S.,3 but their wait time would be significantly shorter if not for illegal immigrants who effectively cut the line. It’s a matter of simple economics: If not for the 11 million illegal immigrants in our country, we could open our borders to 11 million more legal immigrants without increasing the strain on our social resources beyond the present level.
Legal immigration, in fact, tends to bolster the economy rather than strain it. A 2012 report4 published by the Cato Institute, a libertarian think tank, argues with significant economic data that immigrants “create the potential for huge productivity and income gains at the global level” and that “the host country as a whole is likely to benefit as well.” It recommends commonsense policies that would allow for more legal immigration, like removing the cap on highly educated immigrants entering through the H1-B visa program.
Increasing immigration can therefore be a conservative policy. Not only is it beneficial for the economy if done correctly, but it can also reward the men, women, and children who work to come to our country legally. The current system, by contrast, keeps out many of those who would benefit the economy most. It rewards line-cutters, effectively punishing those honest people who try to enter without breaking the law. It unfairly privileges immigrants from Mexico, leaving us with fewer resources to accept immigrants who need our help more, like Syrian refugees. And it creates significant business opportunities for human smugglers, who earn thousands of dollars to funnel into criminal activities with every immigrant they bring to the U.S.5 That’s why it’s so important we get immigration reform right.
Ironically, there’s merit to the position that the right kind of reform must ultimately include large-scale deferred action. A path to citizenship for 2.7 million illegal immigrants was a staple of the 1986 Immigration Reform and Control Act, or IRCA, a bill with wide bipartisan support that was signed into law by President Ronald Reagan. The IRCA also increased Border Patrol staffing by 50 percent and introduced sanctions on employers hiring illegal immigrants as workers.
Those sanctions proved to be too lax, and employers quickly learned to skirt them by ordering work through subcontractors. Further, the demand for immigrant labor remained high, and the IRCA failed to lay groundwork for increased legal immigration. As a result, the illegal immigrant population in the U.S. more than tripled over the next two decades.
But we’ve learned a lot since 1986. In 2013, a bipartisan group of senators that included John McCain and Marco Rubio announced an immigration proposal that would have demanded more stringent checks on job seekers, requiring them to demonstrate legal status through “non-forgeable electronic means.”6 The proposal would also have granted legal presence to the 11 million immigrants already in the country, as long as they paid back taxes and a fine.7
Key Democratic senators like Charles Schumer of New York and Robert Menendez of New Jersey joined McCain and Rubio in backing the proposal, pointing to a bipartisan consensus on the strategy of large-scale legalization alongside strict enforcement. Republicans and Democrats alike recognize, as Reagan did, that deporting every illegal immigrant already in the country is an unreasonable endeavor that would come at great cost.
But if we are going to grant deferred action to the immigrants already here, President Obama’s executive action was the wrong way to do it. Rather than moving toward a sustainable immigration system — one that would make America more welcoming to more immigrants — it instead encourages the same illegal immigration that created our current, broken system. Deferred action should be granted only through Congressional legislation and alongside comprehensive reform that makes clear the action will never be repeated. Future immigrants must know that they cannot benefit by bypassing the legal immigration process like the President tried to bypass the lawmaking process.
Newby Parton is a junior from McMinnville, TN, concentrating in the Woodrow Wilson School. He can be reached at firstname.lastname@example.org.
4See conclusion of report to fact check my summary: http://object.cato.org/sites/cato.org/files/serials/files/cato-journal/2012/1/cj32n1-4.pdf