For a long time, Friday afternoon has been a favorite time for presidents to release embarrassing or politically harmful information. That way, fewer people hear about it at the time, and by Monday morning other news often drowns it out. Now we can add the abrogation of immigration laws to the list of Friday releases. (Tune in next Friday to see whether the IRS has decided not to require you to pay your taxes. This “never mind” attitude toward the law could become quite popular.)
However, in last Friday’s case, there was no danger that Obama’s target audience would miss the story. Hispanic groups, along with Senate Democratic leaders Harry Reid and Dick Durbin, increasingly nervous about the election, had been pressuring Obama for months to circumvent Congress and change immigration policy unilaterally. So President Obama seized the opportunity and declared that people between the ages of 16 and 30 who are here illegally, were brought to the U.S. before the age of 16, are in school or the military, and have not committed a felony would not be deported. (For the first time in American history, not committing a felony gives you privileged status.)
In fact, this group can now apply for work permits.
Obama’s presidential campaign, not known for its subtlety, then immediately sent out a fundraising letter to the Hispanic community.
From a policy standpoint, serious arguments can be made for and against prosecuting people who were brought here by their parents. There are undoubtedly many sympathetic cases, but on the other hand, laws are often passed, at least in part, to deter future actions. Is the president encouraging future parents to break the law, while adding 800,000 new job applicants in a down economy?
These are proper issues for congressional debate. The fact that Congress has not yet passed an immigration bill that suits Obama does not authorize him to circumvent the normal legislative process. Article I of the Constitution makes it clear that Congress makes the laws.
Attention should be given, not just to the policy issue, but also to how President Obama pulled this off. What he did gives us some idea as to how he would govern in a second term, when he would not have to fear the voters again and could concentrate on those to whom he wants to be an historic hero.
By unilaterally changing immigration policy to incorporate most of the DREAM Act, President Obama cut a clever, opportunistic path through the thickets of legality and politics in order to maximize his policy change for supporters, while at the same time minimizing the change for opponents.
Obama acknowledged a year ago that he did not have the legal authority to do this by himself. “I can’t,” he said. “There are laws on the books that I have to enforce.” So one year later, after much political pressure, he does it. Legally, what changed? Incredibly, President Obama’s own people say: Nothing changed.
Most people thought President Obama was putting the new policy in place by executive order, because this is the way new policies within a president’s purview are put into effect. But no president had ever used an executive order to take laws off the books. President Obama’s lawyers had obviously told him he didn’t have the authority to do that by executive order. One would think that our constitutional-law-professor president would have known this.
So, Obama did not use an executive order. He simply directed the Department of Homeland Security to “reprioritize its enforcement policy” to, in effect, put everyone else ahead of the DREAM group when it comes to deporting illegal immigrants. This way he avoids the unprecedented use of an executive order that might even be struck down in court, but achieves his goal of a big splash one week before he makes a speech to a Hispanic group in Florida, a swing state.
Obama representatives acknowledge to his critics that this big deal to the Hispanic community is actually less than meets the eye. They point out that the enforcement provision and the work-permit provision are only a two-year window — they are not permanent. The next president can change them — without even a stroke of the pen, since there is no executive order in place. Meanwhile, though, Obama officials emphasize that people will be processed on a “case-by-case basis.” This is code for: “Everyone familiar with the issue knows that it will take the immigration service, with its tremendous backlog, years to process 800,000 people.”
So the folks Obama will be speaking to in Florida will be getting neither the solution that many of them think they are getting, nor the result that the president strongly implied in his Friday statement.
Hispanic leaders know better, but they will pocket this “victory” and worry about the rest later. Odds are that next week President Obama will be greeted in Orlando as another “Great Emancipator.” The Hispanic voters he’ll be speaking to don’t realize that, with Obama, everything is about getting past the next election.