Immigration: What Obama Did and Why He Did It

by Benjamin Studebaker

I’ve had a few readers ask me to do a piece explaining US President Barack Obama’s recent executive action on immigration. I’ll aim to explain what Obama did, why Obama did what he did, and whether or not what Obama did was legal.

What did Obama Do?

There are roughly 11 million undocumented people currently living in the United States:

The president has taken executive action to protect up to 5 million of these people from deportation for up to 3 years. The Department of Homeland Security has posted the full criteria for who is eligible. To summarize, it makes it easier for young immigrants to become part of the DACA program (or to renew their DACA status) and it makes it easier for people who are parents of citizens or green card holders to get deferred action and work permits. These individuals have to pass background checks and begin paying taxes to the state if they were not doing so already. The executive action also shifts an undisclosed amount of additional resources to securing the border.

Why Did Obama Do What He Did?

There are two broad kinds of reasons the president has for doing this:

  1. Policy Reasons–the president believes this executive action will have benevolent effects on the country, that it is good policy.
  2. Political Reasons–the president hopes that this executive action will force congress to pass a comprehensive immigration reform bill that he would be willing to sign.

Policy Reasons

It is logistically impossible for the Department of Homeland Security to deport 11 million people over any reasonable time frame. At most, the department has achieved annual deportations of around 438,000, roughly 4% of the total:

At that rate, it would take the department 25 years to deport the current population (until 2039), and that’s unrealistically assuming no additional crossovers from Mexico. During that time, many of the immigrants would have children in the United States, and those children would be legally entitled by birth to US citizenship. Consequently, removing all 11 million would entail making parents abandon thousands, possibly millions of child citizens. Because the United States has legal duties to its citizens, these children would become wards of the state. Wards of the state are expensive for taxpayers–consequently, we generally under-fund the programs that care for them. As a result, wards of the state are far more likely to become criminals, substance abusers, etc. By allowing the parents of citizens to remain in the country, we avoid that outcome and allow the department to focus its limited resources on deporting criminals.

There are additional policy reasons in support of the president’s executive action. Research from the non-partisan Congressional Budget Office (CBO) indicates that the average immigrant contributes more in tax revenues than he consumes in public services. Each immigrant nets the state almost $19,000 per decade on average:

This means that policies that allow increase the number of immigrants, allow more immigrants to stay in the country, or document more immigrants so that they pay more taxes reduce the federal budget deficit and improve the state’s fiscal position. By documenting 5 million immigrants, allowing them to stay in the country and pay taxes, Obama’s executive action will potentially generate $95 billion in additional revenue over the next 10 years.

Political Reasons

The president also has reason to believe that his executive actions will be politically advantageous. To start, more than 70% of the general public now believes that there should be a way for undocumented migrants to stay legally:

Among black and Hispanic voters, this figure is over 80%, so this move should help the president safeguard the Democratic Party’s advantages with these groups. The public has been slowly tilting more heavily toward the democrats on this issue, and the executive action should help the democrats to capitalize, provided the public does not object too strongly to the president’s use of executive action to achieve these policy goals:

Additionally, the president can attempt to use his executive action to push congress into passing a comprehensive immigration reform bill that he might be willing to sign. Prior to the executive action, the status quo served congressional republicans rather well. They could expect that deportations would continue regardless of whether or not they acted, and so they had the negotiating advantage. It was the administration that wanted to change the status quo, and the pressure was on democrats to offer legislation that republicans would be willing to agree to. For this reason, house republicans refused to pass a relatively harsh bipartisan senate proposal last year, which would have provided a path to citizenship but would have required immigrants to pay large fines and back taxes and would have heavily militarized the border.

Now the administration has the advantage. If congressional republicans refuse to pass legislation that Obama likes, the president will continue to use his executive power to shield millions of immigrants from deportation without having to militarize the border or impose punitive fines. In sum, the negotiating power of the two parties has entirely flipped. The status quo now favors Obama, and the pressure is on the republicans. If the republicans pass a bill that Obama will sign, they will have to make major concessions to Obama and give him and the democrats an additional major legislative achievement going into the 2016 elections, one that will be extremely popular with the Hispanic voters republicans covet. Having already objected to the president’s executive action and declined to pass a bill last year, republicans have ensured that they will now get none of the credit if they do choose to pass legislation this year. Alternatively, republicans could decide not to pass legislation, banking on a 2016 presidential victory. A republican president would presumably allow them to remake the immigration system the way they’d like it to be, but if republicans don’t pass reform, the president will be able to use this to further justify his executive action and damage republicans’ standing with Hispanic voters. This would make it less likely that republicans would be able to win the presidency in 2016 in the first place.

Obama has trapped congressional republicans between a rock and a hard place, and their only way out is to attempt to damage the democrats by convincing the public that the president has acted illegally. Has he?

Is this Legal?

The short answer is that the administration’s executive action is almost certainly legal. The Federalist Society is an organization that advocates for a conservative, originalist interpretation of the constitution–the interpretation favored by right wing Supreme Court justices like Antonin Scalia and Clarence Thomas. At a Federalist Society panel, conservative legal theorists uniformly agreed that the president is within his constitutional powers. At the panel, Christopher Schroeder, a Duke law professor, said the following:

The practice is long and robust. The case law is robust. Let me put it this way: Suppose some president came to me and asked me in the office of legal counsel, ‘Is it okay for me to go ahead and defer the deportation proceedings of childhood arrival?’ Under the present state of the law, I think that would be an easy opinion to write. Yes.

Georgetown law professor John Baker added:

If Congress wants to restrain the discretion of the president, they are supposed to do what the separation of powers encourages them to do: Write the statute tightly so that it will be actually administered the way you want it administered. The reality is many members of Congress don’t care how it is administered until somebody squawks about it. They don’t read the statutes, so how do they know how it is going to be administered?

William and Mary professor Neal Devins agreed:

I do not think the executive is subordinate to the judiciary, and if the executive is not subordinate to the judiciary and has the power to independently interpret the Constitution, it can’t be exercised only at the veto point when a prior president may have signed the bill. The president who inherits the bill has to have the opportunity to interpret it himself and not be bound by the prior administration. The idea that the prior administration can tie the hands of a subsequent administration doesn’t make sense to me.

There is also a precedent for similar kinds of immigration action taken by US presidents. In 1990, President George H.W. Bush used executive action to defer the deportations of 1.5 million immigrants. This was not legally challenged or complained about at the time. So we should expect Obama’s executive action to survive any legal challenge.

That said, if the republicans are able to convince the public that Obama’s actions are illegal, it may not matter much whether or not this is actually the case. If the public believes the president acted illegally, that would damage the administration and the democrats going into 2016, improving the viability of a republican strategy to stall for time until a republican president is elected. That future president might roll back Obama’s executive actions and renew large scale deportations.

But as for right now? We have good reason to believe that Obama’s executive action will have benevolent policy effects and that it is legal. Consider me in support.