WASHINGTON – As expected, President Barack Obama just announced his plan to shield millions of illegal immigrants from prosecution and possible deportation. A fair estimate indicates that this executive order will cover 4 to 5 million illegal immigrants, almost half the total number of those who are in the US without regular papers.
Prosecutorial discretion
Without getting too technical, the President justified this unilateral move on the (widely accepted) principle of “prosecutorial discretion”.
It is indeed true that all law enforcement authorities in the US may exercise their own discretion (in certain cases) as to what kind of crimes they will prosecute with dispatch, while, for instance, not pursuing minor offences. All this is true. It is also true that past Presidents justified their own executive orders on the same principle.
It is legal
Based on all this, President Obama claims that his executive order is perfectly legal. After all, with his order he is not changing the legal status of the affected illegal immigrants. He is not granting them resident status, let alone allowing them to become citizens. All this would require a law passed by the US Congress.
With this action, Obama is simply shielding the “undocumented” from prosecution. And he justified this rather unprecedented action (in terms of scope, and number of people affected) on the ground that it is inhumane for America to force so many immigrants to live at the margin of society, with no status, no rights, and so on.
The Congress did not act
Well, this is just one of many strong arguments in favor of comprehensive immigration reform. And the President is right when he claims that he has patiently waited for the US Congress to take legislative action. Indeed, more than a year ago the Senate –with Democrats and Republicans supporting it– had passed an immigration bill. However, the House did not even bring it to the floor for debate, simply because the Republican majority is deeply divided and conflicted on this issue.
Republicans want a fight
Anyway, the President has acted. How will the Republicans respond? The initial reactions are not at all promising. As I feared, the Republican leaders in Congress, strengthened by their recent massive electoral victory on November 4, promise to fight President Obama not on the merit of his action; but on principle. They argue, (alas, too many of them are lawyers), that Obama’s unilateral action is unconstitutional, and therefore a severe threat to the very foundations of American Democracy.
I stated before and I repeat now that this legalistic approach, while it has merit, is totally wrong.
The point is that Obama has taken action. Stopping this through legal countermeasures may take a long, long time. (A law suit in US District Court, certainly to be followed by an appeal and then finally a full debate before the US Supreme Court).
In the meantime, the Republicans will appear to be the mean-spirited, anti-immigrant party (in some cases this is unfortunately the truth) resorting to legal tricks in order to stop the implementation of a policy change decreed by a brave President who is inspired by truly American principles of fairness and humanity.
Anti-immigrant party?
Look, the US Constitution is not a detail. Accepting as valid an executive order of this magnitude means creating a major precedent that amounts to a huge increase of the Executive Branch discretionary powers. And this may have unwanted consequences down the line.
However, I believe that the only way to make real progress here is for the Republicans to stop fighting and jump ahead. They must produce a good immigration reform plan that at least matches the reach and scope of whatever Obama ordered now.
And here is the basic premise for any decent immigration reform plan. Whatever the vociferous opponents among the Republicans may argue, it is simply inconceivable that the US Government will deport more than 11 million people. Therefore, it is time to find a decent way to allow them to stay, while providing a path to legalization. This is not easy, given the large number of people involved, but it is possible.
Secure the border
At the same time, the border needs to be secured. The US Government should make it absolutely clear through its actions that a new law aimed at fixing an old problem will not be interpreted by anybody as an invitation to get to America illegally, with the expectation that sooner or later another “amnesty “will take care of them as well.
However, if the entire Republicans Party will be held hostage by its vociferous anti-immigrant minority, then the political and moral battle is lost. If the Republicans choose to fight Obama’s executive order on immigration on constitutional grounds, then the President will be able to say that he was right about taking unilateral action, since the Republicans are so unreasonable.
E Pluribus Unum
Here is my advice to the GOP. Debate the issue; but find unity on the very simple goal of fixing the status of so many people who want to be Americans. By legalizing them, we shall give them a real stake in our society. This will reinforce the Nation. In the end, a good reform will benefit all of us, it will unite us.
Don’t forget our roots: E pluribus Unum, “Out of Many, One”.