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Obama overreaches with immigration executive order

Many of the candidates President Obama campaigned for took a shellacking in the recent mid-term elections. His popularity is at an all-time low and the Republicans now control both the House and the Senate. The media questioned whether his second term would have relevancy in terms of policy impact.

With this as the backdrop, the president’s most ardent supporters urged him to use his executive power to try to bring about some of the changes they believe are desperately needed and were unachievable, given the gridlock that has become increasingly commonplace in Washington.

They urged the president to use his executive power, if necessary, to cancel the Keystone XL Pipeline, require companies with federal contracts to pay their employees a living wage, limit CEOs’ pay to some reasonable multiple of average workers’ pay and close the prison in Guantánamo Bay. Most important, they want him to attempt to stop the deportation of undocumented immigrants who have committed no crime during their stay in the U.S. by temporarily normalizing their legal status through an executive order.

Recently, President Obama announced his plan for overhauling our immigration policy via executive action. Under the plan, approximately 5 million undocumented immigrants without a criminal record will be able to live without fear of deportation and can get a work permit and a Social Security number. They will not get citizenship or legal permanent residence. The plan also provides expanded protection from deportation to young immigrants who came to the U.S. as children. Previously, they had to be younger than 31 years of age and had to have arrived before June 15, 2007. The age limit was removed and the pool expanded to those who arrived before Jan. 1, 2010.

Republicans are livid over the president’s use of executive orders as a tool to meet policy goals. House Speaker Boehner’s spokesperson, Mike Steel, added, “If ‘Emperor Obama’ ignores the American people and announces an amnesty plan that he himself said over and over again exceeds his constitutional authority, he will cement his legacy of lawlessness.”

There is nothing in the Constitution or in any particular statute that explicitly permits issuing executive orders. Presidents generally rely upon Article II of the Constitution as the basis for issuing them. While some view the use of an executive order as a form of executive legislation, the Obama administration will make the case that it is within the president’s “prosecutorial discretion” to decide which immigrants he opts to deport.

The intent of the president’s executive order is laudable from both a compassionate and public policy perspective. If anything, it didn’t go far enough when it failed to provide a pathway toward a green card and, ultimately, citizenship. From a constitutional and a process perspective, however, the president was unwise to bypass Congress and unilaterally implement his plan.

The president, out of frustration, has overreached for various reasons.

First, the executive action will provide only a temporary reprieve from deportation. As Julia Preston wrote in a recent news analysis in The New York Times, “Congress could change the laws that Mr. Obama will rely on for his actions, and a future president could cancel the program, leaving immigrants out in the open and even more exposed to removal.”

Second, Congress could attempt to stop the implementation of the president’s executive action by using its power of the purse to bar funding it.

Third, the Supreme Court could (but probably won’t) override the order in the same way it would find a law unconstitutional.

Fourth, President Obama’s executive action could become a model for future presidents to act arbitrarily in various other public policy areas, i.e. eliminating environmental standards and reducing corporate taxes.

Finally, the mid-term elections suggested that the majority of Americans were unhappy with President Obama’s performance. The president didn’t make the election a mandate on immigration reform and there was no clarion call from the electorate to reform our nation’s immigration system. It may be the right thing to do, but the president does not have a mandate to do it and his motives are subject to question. Clearly, the executive order will resonate with the Hispanic population, and any attempt to thwart it could hurt the Republicans in 2016.

His action could have ripple effects in Mercer County, where there has been substantial growth in the percentage of residents who identify themselves as Hispanic/Latino (up from 9.7 percent in 2000 to 15.1 percent in 2010). Democrats could see a boost in voter turnout among these new immigrants.

With their across-the-board victory in the midterm elections, Republicans earned the right to write their own immigration legislation. President Obama should have given the newly elected Congress one more shot at grappling with immigration reform before opting to take far-reaching executive action. In all likelihood, the Republican-controlled Congress would have done nothing, as they have done in the past, to address the issue.

If Republicans want to demonstrate that elections have consequences and that they are better equipped to lead our nation, they should override the president’s executive order by passing a comprehensive immigration reform bill and sending it to him for his signature.