Responding to the President's Immigration Fiat, Pt. 1

By Stanley Renshon on September 23, 2014

Responding to the President's Immigration Fiat, Pt. 2
Responding to the President's Immigration Fiat, Pt. 3

The president is very likely to take executive action "before the end of the holiday season" that grants administrative amnesty to large groups of illegal aliens and may contain other provisions that reward his corporate and political supporters. The administration has not disclosed the exact provisions and it is likely that at this stage there are several drafts, each with somewhat different elements. It's likely that the final version will be dependent in part on the midterm election results as well as domestic and foreign circumstances.

However extensive the provisions are, responding to the president's immigration legislation-by-executive-order will not be easy.

The president has repeatedly primed the public for his forthcoming order with the repeated theme of Congress "failing to act". This almost sounds commonsensical until you think about it. Congress, of course, fails to do many things, but that doesn't give the president the legal right or legitimacy to essentially enact new laws by substantially rewriting the rules that govern old ones. That's the nature of our constitutional order, but the president is making a political, not a constitutional argument.

Americans have certainly become aware of the president's argument and may even think that, in the abstract, its understandable, and maybe even reasonable. That may be one reason why when the New York Times asked in a recent poll: "If Congress does not act to address immigration, do you think Barack Obama should or should not take action using executive orders?" 51 percent said he should and 43 percent said he shouldn't.

Of course, like every other survey of American public opinion, this one is riddled with partisan disagreement. The 51 percent who support executive action on immigration includes 66 percent of Democrats but only 36 percent of Republicans. More interesting than those expected divisions are the independents, who break 49 percent in favor and 46 percent against.

However, the biggest drawback of the survey is the way in which the question is asked. It links the executive action with Congress not acting on the immigration issue. Just what a satisfactory congressional "act" would be is left to respondents' imaginations.

A worse error in the wording of the question is that it refers to the president's taking action or not "using executive orders", without any mention whatsoever of what those orders might entail. It's a very safe bet that if some of the detailed proposals that have already been leaked were included, there would be substantially less public support.

In a "Meet the Press" interview, the president was asked whether his delay of his executive order until after the midterm elections was "election-year politics". To this the president replied that, no, that wasn't it, he just wanted to make sure "that all the T's are crossed."

Translation: I want to be sure that a full-fledged political campaign-like roll-out is ready — complete with the best legal justifications my attorney general can muster, the most spirited defense I can mount against a "do-nothing Congress", coupled with the most compelling narratives my advisors can develop about the human hardships imposed by our current "broken immigration laws".

It will be a formidable effort, but it is not without its glaring weaknesses.

Next: Responding to the President's Immigration Fiat, Pt. 2