Some pundits, like Vox's Ezra Klein, believe that if Congress refuses to vote an any issue a president deems important, then the president is then empowered to make new law on that issue.
This is, of course, completely false. But The New York Times embraced that position Sunday with an editorial calling on President Obama to grant temporary amnesty to up to 5 million illegal immigrants currently in the United States today. Below is a paragraph-by-paragraph response to the Times's editorial:
We don’t know the details. Mr. Obama and the Department of Homeland Security have not yet supplied the who, what, when or even, officially, whether. But Mr. Obama has promised to respond to Congress’s refusal to act on immigration reform. And the most obvious thing is to lift the threat of deportation from immigrants who should be the lowest priority for removal: those with citizen children, jobs, clean records and strong community ties. Some reports put the size of that group at four million to five million.
First of all, as noted above, the fact that Congress has not acted on an issue does not provide any justification for a president to act on his own.
Secondly, The Democrats controlled Congress for the first two years of Obama's presidency, and all they managed to pass was a lame duck version of the DREAM Act through the House. The Democrats failed to deal with the same 5 million Obama wants to grant amnesty to now. Why didn't Democratic inaction in 2009-2010 justify unilateral inaction then?
Third, the June 2011 Morton Memo, written by Immigration and Customs Enforcement Director John Morton, already accomplished everything the NYT says is needed. That memo already directed all ICE personnel not to deport otherwise law-abiding illegal immigrants. And it worked! Former-ICE acting director John Sandweg even told The Los Angeles Times, "If you are a run-of-the-mill immigrant here illegally, your odds of getting deported are close to zero - it's just highly unlikely to happen."
But that still isn't good enough for the NYT. They think Obama should be allowed to do more.
In truth, Mr. Obama is well within his authority to madden the right. His power to conduct immigration policy is vast. Congress has given the president broad flexibility and discretion to enforce immigration law. It has also given him the resources to deport about 350,000 to 400,000 people a year, as Mr. Obama has done, relentlessly. It could have given him billions more to deport everyone, but it has not.
First, "deferred action," the power Obama cited to create his June 2012 Deferred Action for Childhood Arrivals program and is expected to cite when he temporarily legalizes another 5 million this month, is not a Congressional grant of power. There is no deferred action statute. Obama is claiming this power as an inherent power of the president.
Second, not only is the amount of money Congress has appropriated for deportations irrelevant to the scope of Obama's powers, but the size of appropriations for deportations has not significantly changed since Obama became president. If the size of the appropriation hasn't changed, neither has the scope of Obama's executive power.
Third, Obama's "relentless" deportations are a complete myth. In reality, interior deportations are down 40 percent since Obama took office. Obama created the "relentless" deportation myth by cooking the books on what qualifies as a deportation.
The NYT continues:
For Mr. Obama to use the tools at hand to focus on high-priority targets — felons, violent criminals, public-safety and national-security threats — and to let many others alone would be a rational and entirely lawful exercise of discretion. It is the kind of thing prosecutors, police and other law-enforcement and regulatory agencies do every day. And with the authority to defer deportations of certain immigrants comes the authority, clearly spelled out in federal statute, to give them permission to work.
Again, the Morton Memos already set a policy of focussing on "high-priority targets." But the June 2012 DACA program, and the imminent DACA expansion, do far more than that. They allow illegal immigrants to affirmatively apply for temporary legal status and then apply for work permits, Social Security numbers, and drivers licenses. This is not how every day prosecutorial discretion practiced by "prosecutors, police, and other law enforcement" agencies works. Did you ever get a speeding ticket and get a warning instead? That is prosecutorial discretion. DACA goes far far beyond that.
The NYT continues:
Despite the shrill alarms, deferring deportation is not the dreaded “amnesty” that Republicans made a dirty word. It is temporary and revocable. It is not legalization; it is not a path to citizenship; and it permanently fixes nothing.
The NYT is correct that a grant of deferred action status "is not legalization; it is not a path to citizenship; and it permanently fixes nothing." But it absolutely is amnesty, although admittedly a temporary one. But that only makes the policy rationale behind the program even worse. It injects more uncertainty into our immigration system and signals to future illegal immigrants that if they get to the United States and mange to evade law enforcement long enough, they too will be granted legal status.
More from the NYT:
But there is clearly a value to a program, however limited, that tells the enshadowed population: Come out, give us your names; keep working and paying taxes, supporting your families and staying off the dole.
Here is where the NYT gives away the game. If the June 2011 Morton Memo is a valid, but unwise, use of prosecutorial discretion, Obama's June 2012 creation of the DACA "program" is a clear abuse of that power. Before DACA, illegal immigrants could not "come out, give us your names; keep working and paying taxes." After DACA, and Obama's imminent DACA expansion, many millions of them will be able to do exactly that. If that is not a change in "legal status" then the phrase has no meaning.
Back to the NYT:
And the national interest goes well beyond such practical benefits. Consider the cost, in lawlessness and squandered resources, of indiscriminate immigration enforcement. The wastefulness of chasing millions who pose no threat but keep the economy afloat. The crime and exploitation that flourish wherever the undocumented remain hidden and vulnerable. The rampant wage-and-hour violations that off-the-books workers endure in silence. The civil-rights abuses when cops commit racial profiling, when racist sheriffs stage “crime suppression” patrols to sweep up those with brown skin. The cost to all workers when unscrupulous employers push pay and working conditions to rock-bottom levels. The ripe conditions for crime in communities where vulnerable immigrants fear and avoid the police.
Again, the June 2011 Morton Memo already prioritized the Obama administration's immigration enforcement priorities. Any "indiscriminate enforcement" or "wastefulness of chasing millions who pose no threat" was already addressed by that memo.
But DACA did more than that and at a very clear cost to the nation's other existing priorities. The NYT's own news division reported that the administrative burdens of administering DACA (it takes resources to administer an amnesty program) made it harder for legal immigrants to their green cards.
In other words, instead of ensuring that limited resources were saved so that the DHS could better enforce other immigration laws, Obama's DACA program shifted resources away from those programs thus degrading DHS's immigration law enforcement capabilities.
Finally, the NYT concludes:
Mr. Obama’s critics in Congress belong to a branch of government that has chosen to do nothing constructive about immigration — not even to resolve this summer’s crisis of migrant children at the border, which they looked at and punted on, before going on vacation. This is, after all, an election year. They have abandoned a difficult job to the care of Mr. Obama. They are in no position to complain when he does it.
This is just plain false. The Republican-controlled House did pass legislation addressing the child migrant crisis. It was the Democrat-controlled Senate that failed to pass a bill before they went on vacation.
Is the House Republican border bill the legislation Obama wanted? No. But just because Obama fails to get Congress to pass the exact legislation he wants, when he wants it, does not empower him to create brand new government programs on his own.