With nine now famous words — “The judgment is affirmed by an equally divided court” — the Supreme Court joined the ranks of those in Washington unable to address the challenges of immigration. Congress appeared close during the presidency of Bush the younger. It got even closer a few years ago when the Senate approved a broad reform bill, Democrats and Republicans on board. The effort then collapsed in the House.
This was the context in which President Obama acted, first, in 2012 and again two years later. He initially took executive action permitting illegal immigrants who came to this country as children to apply for temporary protection from deportation and work permits. He then added those adults with children who are American citizens or permanent residents.
Under the first initiative, roughly 730,000 young people have gained protection. The second would affect as many as 5 million people, including expanded eligibility under the first. Republicans went to federal court in Texas seeking to halt the second action. They prevailed in winning a preliminary injunction. That is the ruling the divided Supreme Court let stand last week.
The president had obvious political motives. He pledged to Latinos, a key constituency for Democrats, that he would act if Congress failed to move ahead. At the same time, it is worth weighing his actions against the brazen rulings of federal district and appeals courts.
Fortunately, the analytical task was performed well by Judge Carolyn King of the 5th U.S. Circuit Court of Appeals, in a lengthy, precise and insightful dissent. Even her colleagues on the other side of the ruling praised her “careful” work.
What does the reader find? King argues that the dispute doesn’t belong in the courts. She reminds that the executive branch has the job of administering the immigration system, and Congress has given the president much discretion. Lawmakers also have provided limited resources in view of an estimated 11 illegal immigrants. So a president must make choices, driven, in part, by Congress exhorting officials “to make our country safer.”
The situation echoes the work of a county prosecutor. Every lawbreaker cannot be pursued. A prosecutor chooses, and those decisions vary depending on the officeholder. Thus, as Judge King reasons, this matter is about policy differences, and no place for judges to intrude.
Recall that Ronald Reagan used his authority to protect from deportation the children of parents granted amnesty. George Bush the elder acted similarly in protecting 1.5 million people living here illegally.
Texas and its allies, including Mike DeWine, the Ohio attorney general, contend that President Obama confers unwarranted “benefits” to illegal immigrants. Yet Judge King points out the executive action says nothing about benefits, and benefits already are available under laws enacted by Congress.
The appeals court fumes about the president exceeding his authority by engaging in a sweeping reclassification of “millions of illegal immigrants as lawfully present.” King provides the correction, noting that there is nothing “blanket” about the action. The protection is granted case by case. It is temporary. It involves guidelines for making choices about deportation. The status can be revoked.
King exposes the way her colleagues strain to hold that Texas has standing to sue. They dress up a vague notion of “special solicitude” for states, Texas concerned about the expense in processing additional driver’s licenses, or something it easily could address. King needles the district court judge for asserting that the president has been “doing nothing” about illegal immigration. Actually, at 400,000 per year, he has deported illegal immigrants at twice the rate of his predecessor.
By inviting illegal immigrants to apply, the president puts the country in a better position to identify and deal with the challenge.
Which gets to what he is seeking to accomplish. He has been attempting to bring order to the question of who should be deported. No surprise that he has focused on those who pose some kind of threat.
And the many others who live productive lives, attached to families and work, and, realistically speaking, will not be deported? Let’s benefit more fully from their skills and contributions by allowing them to escape the shadows.
The value already is apparent in the young people who have applied. That makes for a dignified and heartening contrast to the demagoguery and other ugliness in the debate, not to mention the dysfunction of Congress in failing to repair the immigration system. Oh, and there is more. Imagine the Senate having confirmed a justice who would break the tie.
Douglas is the Beacon Journal editorial page editor. He can be reached at 330-996-3514 or emailed at firstname.lastname@example.org.