Policy or politics?

June 17, 2012

Listen to the broadcast of Decision 2012 with Paul Gleiser, Monday, June 18, 2012.

On Friday, the president announced an executive order that will categorically stop the deportations of certain illegal immigrants who came to the United States as children. According to government estimates, approximately 800,000 individuals are affected by the order. In effect, the president is enacting the Dream Act absent an act of Congress.

Is this policy or is it politics?

On the policy side, there is an argument to be made that individuals who came to the United States as a result of the illegal entry of their parents warrant special consideration. First, their illegality is none of their own doing. Second, depending on their age when they arrived, many of these children are attaining or will soon attain majority and having lived here all their lives they are, for all but the want of documentation, Americans. Many, including me, argue that it will prove politically impossible and in all likelihood economically inadvisable to deport thousands of young men and women now in their late teens or twenties who have lived in the United States since they were small children. At some point we will have to recognize the fact that for the lack of good policy and enforcement of immigration laws since the amnesty of 1986, another amnesty in one form or another is inevitable. For better or for worse, the Dream Act as proposed constituted that amnesty.

But this is an election year and it is politics that drive policy. Much as President Obama’s recently taken position on gay marriage constituted an about face from his earlier position, so, too, does his executive order of Friday regarding the children of illegal aliens.

Just last year, in an interview on the Spanish-language TV network Univision, the president said,

“America is a nation of laws, which means I, as the president, am obligated to enforce the law.…There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply through executive order ignore those congressional mandates would not conform with my appropriate role as president.”

That statement by the president went out the window on Friday.

A very high stakes game of chess will now ensue.

Republicans will strenuously object to the president’s unilateral decision to ignore Congress and enact by executive order that which he cannot currently get enacted by legislation. It constitutes a fair objection.

Those charged with enforcing law have, of necessity, discretion in carrying out that duty. A district attorney can choose not to prosecute a case of shoplifting. But Republicans will argue that prosecutorial discretion does not include the discretion to make shoplifting legal. Only a legislative act can do that. Obama’s executive order makes the discretion to deport or not deport certain illegal aliens mandatory and that has the practical effect of creating new law.

The president cannot create new law. Only the Congress can write laws.

But these are arcane points of law which will be hard for Republicans and Romney to adequately explain in the face of Democratic accusations that Republicans lack compassion for the children of illegal immigrants. The president knows this and thus the timing of his executive order of Friday is no accident. He thus put the Republicans, meaning Mitt Romney, in a tight place.

It can be argued that the president’s move is cynical and calculated. But this is an election year, and that’s how the game gets played.

However, when the prerogatives of one co-equal branch of government are trampled by another for the pure purpose of political gain, the game becomes very dangerous indeed.