Congressional Republicans have run out of options in countering President Barack Obama’s decision to exercise “prosecutorial discretion” in the enforcement of federal immigration law. Such discretion means Obama’s administration, like all administrations, is given the leeway to choose which methods of enforcement work best, and in this case, the result is that as many as 5 million undocumented immigrants will not face deportation. His order, announced on national TV, does not cover the approximately 7 million illegal residents that remain, but it is in keeping with actions taken by previous chief executives. According to the American Immigration Council, a nonprofit in Washington, every single president in the postwar era, whether Republican or Democrat, has acted independently of the Congress on immigration.
The Republicans could pass reform legislation to override Obama’s immigration order but that’s unlikely given the sway of the party’s Know-Nothing faction, which is peerlessly led by the ambitious Senator Ted Cruz of Texas. The Know Nothing are a nativist throng that refuses to back reform of any kind even though the U.S.-Mexican border has never been more secure and even though the president has deported more aliens than all previous presidents combined. The Republicans could, moreover, press for impeachment on the grounds that Obama exceeded his authority in expanding a previous order (Delayed Action for Childhood Arrivals). However much that might warm the cockles of the Republican base, impeachment is neither practical nor smart. It wouldn’t revoke the order, only the executive who decreed it, and even more than the 2013 shutdown of the government, any Republican attempt to impeach Obama, especially if it’s successful, would be politically suicidal.
So Obama beat Republicans inside the beltway. But the fight is far from over. From a tactical view, this is where having control of a majority of governorships comes into play. On Dec. 3, attorneys general from 18 states filed suit in federal court in Brownsville, Texas, in a bid to stop the administration from implementing Obama’s immigration order. By filing in Brownsville, a small city that’s more than 93 percent Hispanic, the Republicans found in Andrew S. Hanen a sympathetic judge with a dim view of the administration. This effort, which has been joined by six more attorneys general since the initial filing, is doomed to fail. The complaint won’t bear scrutiny. But the point isn’t failure. It’s to never cede ground to the enemy. The utter nihilism of this lawsuit should elucidate what shouldn’t any longer require elucidation. Politics to the modern-day Republican Party is total warfare.
If judged on the merits, Obama’s immigration order is clearly within the constitutional limits of his authority. In any case, executive orders are temporary. They can be reversed by future presidents, Republican or Democrat, or they can be outlawed by Congress (Obama has come close to pleading with the Republicans to please, pretty please, pass immigration reform, please). More relevant to the Brownsville lawsuit, however, is that American jurisprudence is preponderantly acquiescent to the duties of the chief executive. Courts are exceedingly cautious and reluctant to say a president broke the law in the process of executing it. This is no secret. GOP lawyers know this. Consider the latest from John Yoo.
You’ll recall that John Yoo wrote the so-called torture memos while serving in President George W. Bush’s Department of Justice. Those memos in essence rationalized the CIA’s use of “enhanced interrogation techniques.” Apropos to the Brownsville suit, the memos argued that any action taken by the Bush administration in the name of national security is in and of itself legal. Say what you will, but Yoo is consistent. In a paper co-authored with a faculty colleague at the Berkeley School of Law, Yoo wrote there is no legal or political “remedy” to Obama’s executive actions on immigration, because “the prevailing standard of review of challenges to executive non-enforcement decisions is extraordinarily lenient.” In other words, if the president does it, it’s de facto legal, because there’s no way to stop it.
Like many Republicans, Yoo believes Obama’s immigration order is a “constitutional wrong,” but unlike fellow Republicans, he recognizes the main obstacle to suing the president over non-enforcement is something called “standing.” That’s a legal term meaning that I must show I have been harmed in some way to have grounds on which my legal complaint “stands.” The 24 attorneys general certainly believe they are poised for a world of hurt. Their states will suffer “dramatic and irreparable injuries” thanks to Obama’s “unilateral exercise in lawmaking.” But that’s not entirely clear. For one thing, as Yoo writes, it’s doubtful any “individual litigant could show the particularized harm necessary for … standing.”
For another, who’s being harmed? States have lived with illegal immigration for a long time, something that Republicans have claimed is itself a source of “dramatic and irreparable injuries.” More likely is a specific class of people fears “harm”: large corporations and agribusiness firms that rely on cheap labor. Obama’s immigration order in effect puts a floor under wages so immigrants formerly fearful of deportation can now demand at least the federal or state minimum, whichever wage is higher. That, economists say, puts upward pressure on wages, notably at the bottom of the labor market. And that helps everyone.
So this lawsuit isn’t about “amnesty” or “rewarding lawbreakers” or the integrity of the Constitution. Not at all. The longer Obama’s immigration order is delayed, the more time there is to exploit cheap labor. It makes sense when you think about. Big Business is, after all, the Republican Party’s base—it’s real base, to paraphrase George W. Bush. There is virtually no downside, short of impeachment, to waging all-out war against the Obama administration. Even if you lose in the end, there is honor–and profit!–in fighting the good fight. The real question is whether national Democrats are prepared to meet power with power, or are they content with merely being the most reasonable people in the room.