I BARACK-WSJ

Posted By on November 21st, 2014

http://online.wsj.com/articles/i-barack-1416531449

The immigration order is an abuse of power that fails as a policy reform.

President Obama ’s decision to legalize millions of undocumented immigrants by his own decree is a sorry day for America’s republic. We say that even though we agree with the cause of immigration reform. But process matters to self-government—sometimes it is the only barrier to tyranny—and Mr. Obama’s policy by executive order is tearing at the fabric of national consent.

The first question to address is Mr. Obama’s legal rationale. At least he finally rolled out a memo from the experts on presidential power in the Justice Department Office of Legal Counsel, but it’s fair to wonder how much time he gave them. The OLC made its justification public about an hour before the speech.

The President’s rationale is “prosecutorial discretion,” but he is stretching that legal concept beyond normal understanding. The executive branch does have discretion about whom to prosecute. But this typically extends to individual cases, or to setting priorities due to limited resources such as prosecuting cocaine but not marijuana use.

Mr. Obama claims he is using his discretion to focus on such high deportation priorities as criminals, but he is going much further and is issuing an order exempting from deportation entire classes of people—as many as five million. Justice’s OLC memo claims there is no such categorical exemption, and that immigration officials can still deport someone if they want to, but the memo offers no measures by which to make that “complex judgment.” In practice it will almost never happen.

The Reagan and Bush precedents cited by the Obama lawyers are different in kind and degree. They involved far fewer people and they were intended to fulfill the policy set by Congress—not, as Mr. Obama intends, to defy Congress. That is why their actions were done with little controversy.

Mr. Obama is issuing his order amid furious political opposition and after his own multiple previous declarations that he lacks legal authority. “If we start broadening that [his 2012 order for undocumented children], then essentially I’ll be ignoring the law in a way that I think would be very difficult to defend legally,” Mr. Obama said on Telemundo in September 2013. Until now.

While we favor generous immigration, Mr. Obama’s order also fails as policy because it won’t reduce the economic incentive that drives illegal immigration. The only way to reduce the flow of illegal migrants is to offer enough legal ways to work in the U.S. and then return home.

His unilateral order will encourage more migrants to come in hope of a future amnesty, without matching the ebb and flow of migration to America’s changing labor market demands. His order also offers no prospect of future citizenship, creating a laboring class with less of a stake in American institutions—and less incentive to assimilate.

The politics of immigration is already fraught, and Mr. Obama’s order will make it worse. He is empowering the most extreme anti-immigrant voices on the Republican right, which may be part of his political calculation.

Mr. Obama wants Democrats to get political credit with Hispanics for legalization, while goading the GOP into again becoming the deportation party in 2016. Hillary Clinton would love that, which explains why Bill Clinton is already backing Mr. Obama’s order. Mark this down as one more way in which this President has become the Great Polarizer.

How should Republicans respond? They can use their own constitutional powers without falling into Mr. Obama’s political trap. Impeachment is a fool’s errand that would change the political subject and fail. The power of the purse is an obvious tool now that the GOP will soon control the Senate, but that will require patience and unity to prevail over Mr. Obama’s vetoes.

The best GOP revenge would be to trump him on immigration. Before Mr. Obama’s decree, smart Republicans were discussing a legislative strategy focusing on piecemeal immigration reforms. Separate bills addressing individual problems (border security, agriculture and tech visas) could pass with rotating majorities that show the GOP has immigration solutions of its own. Some bills might get to Mr. Obama’s desk, forcing him to reveal his cynical political hand if he uses his veto to block durable reform.

We realize this won’t be easy, especially as many on the anti-immigrant right will want an immediate strategy to defund the President’s order. But another Pickett’s charge up Shutdown Hill is exactly what Mr. Obama wants. Republicans need to keep the focus on Mr. Obama’s abuse of power while showing voters they have better immigration solutions.

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The polls show the American people are uneasy about Mr. Obama’s unilateral law-making, and liberals should be too. Mr. Obama is setting a precedent that Republican Presidents could also use to overcome a Democratic majority. How about an order to the IRS not to collect capital-gains taxes on inflated gains from property held for more than a decade? That policy would be broadly popular and also address a basic lack of fairness.

Mr. Obama’s rule-by-regulation has already been rebuked more than once by the Supreme Court. His “I, Barack” immigration decree is another abuse that will roil American politics and erode public confidence in the basic precepts of self-government.

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