Both my parents were immigrants. I grew up in a working class suburb of Detroit where every family seemed to include at least one parent or grandparent who was an immigrant, from places all over the world including Mexico, Syria, and Iraq. So of course I admire and respect immigrants, as we all should, because every American is either an immigrant or the descendent of ancestors who came here from somewhere else. And we are told that even includes Native Americans.
Whether we should admire and respect immigrants is not what the immigration controversy is really about. Given that we should admire and respect immigrants, the question at the heart of the controversy is, how many should we take? And specifically, should we accept everyone in the world who wants to come to the United States to live and work? Or alternatively, should we try to enforce a numerical limit on how many immigrants we accept every year?
That is a binary choice, either no limits, or an enforced limit. And it is a hard choice, especially for our elected officials, because advocating no limits does not sound like a path to election or re-election. But trying to enforce a numerical limit presents numerous administrative challenges, and requires a willingness to turn away people who are neither criminals nor national security threats, who just want to work hard for a better life for themselves and their families, and who remind us of our own ancestors. And if they come anyway in violation of our numerical limit, we have to try to remove them to defend the numerical limit. Can we do that?
Many lawyers like to think they can argue both sides of any controversy, and I am no exception. I can make the historical, philosophical, libertarian, economic, and religious arguments for open borders. But I can also, and do, defend the decision of Congress to enforce a numerical limit on immigration.
Although it has become a cliché to say that everyone agrees that our immigration system is broken, I do not agree with that. I believe that what is broken is our willingness to make the hard choice between simply allowing unlimited immigration, as we did for the first century of the republic, or alternatively enforcing a numerical limit on immigration, with all the attendant difficulty, complexity, and expense that entails.
It is perhaps understandable that many citizens including elected officials keep looking for a third, easier choice. Open borders without a limit on immigration would strike many citizens as dangerous, and many politicians as political suicide. But the alternative of having to turn away and remove would-be immigrants, who remind us of our own ancestors, in order to enforce a numerical limitation on immigration strikes many citizens as equally unappealing.
How about this for a third choice? We can pretend we have a numerical limit, keep it on the books, but not enforce it. And whenever that policy choice produces a large number of illegal immigrants, we can just enact a big amnesty or legalization. How does that sound? What message would such a policy send to those considering legal or illegal immigration to the United States?
If we do nothing at all to reform our immigration system, we are left with the most generous legal immigration system in the world, issuing every year more green cards for legal permanent immigrants with a clear path to full citizenship than all the rest of the nations of the world combined. In testimony to the Judiciary Committee of the U.S. Senate in 2013, I described that immigration system as worthy of our nation of immigrants. But it needs to be defended and enforced to deter excess illegal immigration, unless we prefer the alternative of unlimited immigration. And Congress can adjust the numerical limit to be enforced at any time as long as we are committed to enforcing it.
From the start of his administration in 2009, President Obama has advocated and supported a set of changes to U.S. statutory immigration law, including legalization and a pathway to citizenship for most illegal aliens in the United States. He has labeled this set of changes to U.S. immigration law as “comprehensive immigration reform.”
Because President Obama was unable to persuade Congress to enact the package of changes to U.S. immigration law that he advocated, he decided to use unilateral executive orders to circumvent Congress and advance some of those changes. On June 15, 2012, less than four months before a presidential election, President Obama announced Deferred Action for Childhood Arrivals (DACA) to provide both deferred action and work authorization for all illegal aliens who came to the United States before age sixteen. DACA was implemented through memoranda from Secretary of Homeland Security Janet Napolitano to her subordinates, and has, as of 2015, formalized the status of approximately seven hundred thousand beneficiaries.
On November 20, 2014, two weeks after congressional elections in which Republicans won control of the U.S. Senate from Democrats and widened their majority in the U.S. House of Representatives, President Obama announced Deferred Action for Parents of Americans and Legal Permanent Residents (DAPA) to provide deferred action and work authorization to an estimated five million additional illegal aliens. A federal district court injunction has prevented DAPA from being implemented. The injunction has been upheld by the U.S. Court of Appeals for the Fifth Circuit. The Obama Administration has announced that it will not further appeal the injunction and will proceed to litigation on the merits of the challenge to DAPA by Texas and twenty-five other states.
Anyone who follows the news knows that the world is awash in uninvited migrants. Australia and Western Europe, even Israel, are trying to cope, just like the United States, with a wave of migration. Some migrants qualify as true refugees under international law. But many, though fleeing lives of hardship, do not. And some are simply seeking a better life than the one they left behind. In the United States we have a simple solution to the paradox of unauthorized migration. We let our elected representatives in Congress decide how many and which of the migrants are allowed to stay, and also what to do with those not allowed to stay. This Article will discuss why President Obama’s latest deferred action executive order, DAPA, is unwise and bad policy, the unintended tax consequences of such an order, and why the order is lacking in legal authority and unconstitutional.