It is characteristic of news reporting in the selfi-presidency that all events are now seen only with regard to how they affect Barack Obama. Hence this headline on the Washington Post’s report on a federal judge’s temporary halting of President Obama’s new immigration program that was to begin today:
Judge’s Immigration Ruling Adds to Obama’s List of Potential Legal Pitfalls
So this is all about President Obama. Everything is, you know.
U.S. District Judge Andrew Hennen’s ruling is actually about two things even larger than President Obama’s contagious ego. One is the rule of law. Can President Obama rewrite immigration law all by himself? The second thing concerns the President’s attempt to direct privileges and taxpayer money to illegal immigrants.
The Obama administration has tried to portray the issue as prosecutorial discretion: the president, according to this idea, has the right to determine how to enforce the law. But that is not what is at stake. Judge Henen’s memorandum, according to an excellent piece in today’s Wall Street Journal, deals with whether the president has the statutory right to change the law and the grants and privileges he is unilaterally awarding to illegal immigrants.
The Wall Street Journal:
The 123-page memorandum opinion carefully lays out the legal case against the program, concluding that the Obama administration lacks statutory authority to change the law without congressional action, and that the administration did not comply with the minimal procedural requirements of public notice and comment under the Administrative Procedure Act.
The program, called “Deferred Action for Parents of Americans” (DAPA), grants work authorization, Social Security eligibility, and eligibility for important federal and state benefits to virtually all aliens who have been in the U.S. since 2010, had a baby in this country, and have not committed felonies. The program was to go into effect Wednesday.
Under the Immigration and Naturalization Act, undocumented-immigrant parents of U.S. citizens are required to wait until the child turns 21, and then must leave the country for 10 years before applying for a change of immigration status on account of that child. Those requirements have been part of statutory law for 60 years. DAPA dispensed with those requirements for an estimated 4.3 million persons.
The Obama administration argued that DAPA is a routine application of “prosecutorial discretion”—the authority of executive officials to set priorities for enforcement of the law and to refrain from enforcement in cases where the public interest is least urgent. The district court recognized, however, that prosecutorial discretion is limited to nonenforcement and doesn’t entitle the executive branch to grant affirmative benefits such as work permits and welfare without statutory authority and notice-and-comment rule-making.
As the court explained, “DHS has not instructed its officers to merely refrain from arresting, ordering the removal of, or prosecuting unlawfully-present aliens.” Instead the department “has enacted a wide-ranging program that awards legal presence, to individuals Congress has deemed deportable or removable, as well as the ability to obtain Social Security numbers, work authorization permits, and the ability to travel.”
A friend of mine who is very gung-ho immigration, legal or illegal, has long argued that illegal immigration would be a boon for both the immigrants and the country—except for our generous public assistance programs. According to my friend, illegal aliens traditionally have wanted to work for their betterment and that of their families. This is the American way. What's not to like?
The monkey wrench into this scheme is our generous public assistance programs. Eventually, almost everybody becomes eligible. If people once came here to work, some (my friend argues) now come here because of benefits to be had without working. The Obama immigration system would award benefits immediately and without the taxpayer or the Congress having a say. But we would get to pay. That’s a given. We would also no longer inhabit our old republic where the rule of law prevails.