Can Republicans Make DACA Expansion a Court-Packing Case?

As the collision over immigration policy grows more likely each day, there’s a major imponderable at play in how the public reacts beyond the preestablished views of nativists and advocates for immigrants.

On the one hand, what Barack Obama is trying to do reflects a relatively consistent and sizable majority opinion favoring a “path to citizenship” for undocumented immigrants. The kind of conditions on this path set by the Senate-passed comprehensive immigration reform bill, which the president championed and House Republicans discarded, made it a very popular solution to a chronic problems.

On the other hand, it’s unclear whether continuing to move in that direction via executive action will make the pro-CIR majority happy. There are some dubiously-worded polls out there that seem to indicate otherwise. And clearly, Republicans intend to emphasize a constitutional argument against a DACA expansion rather than defending the status quo or some alternative vision of mass deportations.

You get the feeling Republicans are hoping this becomes a throwback to the defeat of FDR’s so-called “court-packing scheme” in 1937, where a step taken to do something very popular–implementing New Deal legislation–wound up being unpopular because of the means deployed.

It’s hard to predict how it will play out, though the immediate risk to the White House is the defection of enough congressional Democrats to make the fight Obama versus Congress. Even then, of course, Congress is significantly less popular than the president, which puts him theoretically in a stronger position than FDR, who was taking on SCOTUS, then among the most highly respected institutions in the country.

So we’ll have to wait and see. But it will be shocking if more than a few Republicans differ from the “constitutional” party line and admit they or their “base” just doesn’t like any influx of brown people unless they’re cheap labor that can be deported at the drop of a hat.

Washington Monthly - Donate today and your gift will be doubled!

Support Nonprofit Journalism

If you enjoyed this article, consider making a donation to help us produce more like it. The Washington Monthly was founded in 1969 to tell the stories of how government really works—and how to make it work better. Fifty years later, the need for incisive analysis and new, progressive policy ideas is clearer than ever. As a nonprofit, we rely on support from readers like you.

Yes, I’ll make a donation

Ed Kilgore

Ed Kilgore is a political columnist for New York and managing editor at the Democratic Strategist website. He was a contributing writer at the Washington Monthly from January 2012 until November 2015, and was the principal contributor to the Political Animal blog.