WASHINGTON – Andrew Hanen, a Texas Federal Judge, issued a preliminary injunction against Obama’s presidential order that shields millions of illegal immigrants from federal prosecution. Many legal scholars believe that this decision will be upheld by a higher court. If this is so, the de facto Obama amnesty is dead.
Obama wins
This would be a huge black eye for President Obama, who obviously thought that he could get away with this. Still, whatever the eventual final judgement of this issue, from a political stand point Obama wins.
Republicans are anti-immigrant
He wins because he will portray himself as the national leader who at least tried to help millions of people. He will look good among the Hispanics, while the Republicans who concocted the legal challenge will look bad. From this vantage point, it does not really matter what the Constitution says. The Republicans will look anti-immigrant zealots who will exploit every legal opening to make life miserable for millions of people who live in fear of deportation.
Give a political response to Obama’s action
Last year, after President Obama announced his decision not to pursue millions of illegal immigrants, allowing them to stay in America without facing any threat of deportation, I wrote that the Republicans needed to find a constructive political response to this. I expressed the hope that the Republicans would not do what they have done: initiate a legal challenge without putting forward any good proposal aimed at legalizing, on way or the other, millions of illegal immigrants.
I believed then and I believe now that to focus only on a legal challenge against this presidential unilateral action (that clearly stands on shaky constitutional ground) was a bad idea. Yes, this is a country of laws. Yes, most likely what Obama did was and is unconstitutional.
Prosecutorial discretion?
The principle of “prosecutorial discretion” invoked by Obama as a justification for his presidential order not to prosecute millions is accepted practice in America. But only in individual cases. Nobody ever believed that it could be applied in a sweeping fashion to literally millions of law breakers.
Therefore, it is true that giving Obama a pass on this over reach of presidential powers would have created a very bad precedent. Imagine another President who, tomorrow, at his or her discretion will decide not to enforce this or that law, and then also invoke “prosecutorial discretion” as a justification.
Legal challenge without political initiative
However, attacking the President for his over reach, without proposing anything at all to solve the immigration problem Obama said he wanted to address, makes the Republicans look bad politically.
Now it looks as if they are using the legal challenge against Obama’s action as a pretext. What they really want is to keep persecuting millions of people, many of whom have been here in America for years, or even decades.
Look, most immigrants and their friends are not constitutional or legal scholars. At the end of all this, they will only know that Obama was trying to help them, while the Republicans did not want them to be helped.
This is the way this matter is going to look politically. By invoking high principles of separation of powers that indeed do say that Presidents must apply the law of the land, the Republicans show that they are mean-spirited. They have no intention to help the immigrants. They want to the full enforcement of existing laws to beat up the Hispanics. Therefore, they are heartless, bad people.
Where is the Republican immigration reform law?
It is not intrinsically wrong to challenge the President’s abuse of executive power. But, in this context, it is alright only if at the same time the Republicans would put forward their own balanced and compassionate reform package to solve this gigantic problem of illegal immigration that demands a humane solution.
The fact of the matter is that America will never, ever deport 11 or 12 million people. This being the case, let’s be reasonable. Let’s find an orderly way to give these illegal immigrants a clear, practical path to legal status.
Obama’s executive action was poorly conceived, and most likely it will be voided. But its policy intent was good.
It is up to the GOP to put forward its own humane solution.