Obama’s Immigration Decree

President Barack Obama’s reaction to the shellacking he and his policies received from the American people in the midterm elections surprised no one in its stubborn petulance. Along with some eye rolling and clearly perfunctory statements about how he would “cooperate” with the new Republican majority, President Obama made clear that he sees himself as “in charge” of the government and plans to do what he wills with important policies. On immigration in particular, the president essentially promised that he would “do what I need to do” to get the kinds of policies he wants by issuing one or more Executive Orders. On several occasions, Mr. Obama has said, in essence, “I have waited long enough for legislation I like” and so he has the right, even the duty, to act on his own through Executive Order. As Democratic flack Paul Begala said twenty years ago, “stroke of the pen, law of the land, kinda cool.”

No, not so cool. Article I, Section 8 of the Constitution specifically provides that “The Congress shall have power to … establish a uniform rule of naturalization.” That is, the Constitution is crystal clear that “naturalization,” meaning the grant of citizenship to those coming into a country, belongs to Congress. The path to citizenship is a matter of law, not executive discretion. This means that the elements of citizenship, including lawful residency, also are matters of law, not executive discretion.

Executive Orders have been around as long as our Republic. But until recently American presidents understood that their purpose was to organize the executive branch, period. Their purpose is to help presidents coordinate internal policies only. So, an Executive Order that says “hire and promote for service in federal agencies without regard to race” is a proper Executive Order. On the other hand, an Executive Order that says, “do not deport illegal immigrants” is not proper; it is an order to disobey properly promulgated laws regarding immigration, seeking to place the president above the law, and with it the Constitution.

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One might think these points obvious, unless one had observed the Obama Administration’s conduct in regard to immigration over the course of its lifetime. Persistent refusal to enforce clear statutes such as that demanding deportation of those entering the country illegally (including the flood of children sent here in hopes that the United States would simply accept, care for, and raise them) has been this president’s consistent policy. It is a policy in defiance of both law and common sense.

There is no more basic duty of a government than that of protecting its borders. And the promised Executive Order, universally assumed to entail amnesty and residency status for millions of people who entered our country illegally, intentionally undermines this most basic duty. It also sets up the president as a grand legislator, able to make law for the nation in defiance of the national legislature.

Our immigration policies are clearly broken, unfair, and harmful to the national interest. They are also harmful to the interests of those who are entering this country, for they promise them a life the laws and the realities of economic and social life will not allow. Those who believe that migrant workers’ camps, filled with families, including children living with poverty, disease, and a total lack of educational opportunities are a thing of the past are fooling themselves. Such camps are all over rural America, and they are being built, all but literally, by our current immigration policies—policies yet another “amnesty” will continue far into the future.

Current policies turn a blind eye to illegal immigration and to the employment of illegal immigrants. In practice, they provide for deportation of immigrants only if they cause too much trouble and leave determination of who is “too much trouble” to powerful economic actors and an overburdened criminal justice system. They foster contempt for law among many immigrants, fear of the law among most immigrants, and a callous misuse of the law by all too many employers who claim to be supporting American values.

Republican leaders have been making noises that President Obama will regret any unilateral action on immigration. Unfortunately, too many of them really are hoping for just this. A decree from Mr. Obama granting amnesty to illegal immigrants would give Republicans the political cover they need to allow current policies of gray-market immigration to continue. By gray-market immigration I mean our current policies, according to which immigrants are allowed to enter, provided they accept second-class status. Some may be treated as “guest workers,” maintaining agribusiness’ ability to keep them in line. But most will continue to enter illegally, hoping for an amnesty of their own down the road. In the meantime, they will serve as menial workers, doing as they are told in impoverished conditions, raising their children to see America as a land of opportunity for some, but for them a land of fear and poverty to be endured in hopes that they or their children may be granted citizenship by some distant political figure over whom they have no control.

Those waiting for amnesty should not be expected to love a system that lets them into the country then denies them the protection of its laws. It should come as no surprise, then, that illegal immigrants and the advocates claiming to speak for them, should seek to get as much out of the political system as they can. Indeed, our current immigration mess can only breed cynicism concerning the ways in which our government doles out services, social welfare funds, and even access to justice. Some may see such observations as part of a leftist critique of America but they arise from a simple determination that people should not be treated as second-rate persons; they should be either welcomed as Americans or kept out at the border. Our politicians’ refusal to make this simple choice is the root of our problem, and Republican determination to bow to those who demand cheap, gray-market labor will hurt them as much as the country as a whole. The result may well be the massive support of left-wing Democratic policies by Hispanics that left-wing Democrats have been seeking for decades, even as Republicans feared such a result without having any clue how to respond.

The proper response is simple, but unfortunately not easy given current political alliances. The answer is to stop giving amnesties, to stop allowing people to enter the country illegally and stay, and most important to stop allowing employers, and agribusiness in particular, to get away with knowingly using illegal immigrants as little more than slave laborers. Real, meaningful fines combined with real protection of our borders would allow for development of a real immigration program that would, in fact, call for hundreds of thousands of immigrants to enter our country legally to provide labor and services in an open, free economy without fear of legal reprisals and looking forward to the real chance of gaining citizenship.

The stroke of President Obama’s pen can provide none of this. One only hopes Republican leaders will look beyond the immediate interests of their well-healed supporters to a broader, fairer, more American policy on immigration.

Editor’s note: This column first appeared November 12, 2014 on Imaginative Conservative and is reprinted with permission.


  • Bruce Frohnen

    Bruce Frohnen is Professor of Law at the Ohio Northern University College of Law. He is also a senior fellow at the Russell Kirk Center and author of many books including The New Communitarians and the Crisis of Modern Liberalism, and the editor of Rethinking Rights (with Ken Grasso), and The American Republic: Primary Source. His most recent book (with the late George Carey) is Constitutional Morality and the Rise of Quasi-Law (Harvard, 2016).

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