A Dangerous Executive Precedent on Immigration

COMMENTARY Immigration

A Dangerous Executive Precedent on Immigration

Dec 12, 2014 2 min read

Former Policy Analyst for Homeland Security and Cyber Policy

David Inserra specialized in homeland security issues, including cyber and immigration policy as well as critical infrastructure.

Last month the President announced that he would no longer enforce U.S. immigration law. Instead he would actively shield illegal immigrants from deportation and issue work authorizations for about 5 million now ineligible to hold jobs.

During the first six years of his presidency, Mr. Obama made over a dozen statements noting that he simply did not have the authority to… well, act the way he has now acted. In the past, he observed that, being neither “king” nor “emperor,” he couldn’t just do whatever he wanted on immigration.

That changed with his royal proclamation of executive amnesty for 5 million.

As an immigration policy, this is about as counterproductive as it gets. It will encourage another, larger wave of illegal immigration. It also ensures that additional homeland security resources will have to be redirected to help quell the stampede for the borders and process amnesty applications for as many as 5 million unlawful immigrants.  Those resources will come at the expense of other homeland security priorities, such as combatting terrorism, reforming FEMA, and improving cybersecurity.

While the policy ramifications are indeed bleak, what President Obama did last month creates an even greater threat, by setting a dangerous precedent for future executive action. If the President can choose to ignore duly enacted law and create his own laws from thin air—without and in spite of Congress— then other areas of our law are also optional for this or future Presidents. That prospect should frighten Americans of all political stripes.

Those who believe in taxing capital gains can now imagine a future Republican president announcing that, since there aren’t enough IRS agents to enforce all our tax laws, the president is officially granting protection from prosecution to individuals who don’t pay their capital gains taxes. Using only his “prosecutorial discretion,” that president will have effectively cut tax rates on the rich and owners of stock. When asked about this hypothetical, President Obama couldn’t logically rebut it.

Environmentalists might ponder a future President from an energy-producing state. Since the EPA has limited resources, he might order the agency to stop enforcing environmental laws against coal or oil activities. Meanwhile, he could issue an official order of protection from regulation for any fossil-fuel producers and consumers who apply for one.

Libertarians might think about a future President who decides privacy laws aren’t worth enforcing. Moreover, any government official would be free to violate the privacy of others, so long as he remembers to get a dispensation of protection from the White House.

Fans of Obamacare should remember critical funding and the linchpin of the law could be eliminated if a future President ordered the IRS not to enforce the penalty for individuals who choose not to buy insurance.  Same goes for the employer mandate, various insurance regulations, and many of the other taxes in Obamacare, including the medical device tax. All of them could be effectively eliminated by the stroke of an imperial president’s pen.

Even if you don’t care about these issues, it shouldn’t be too hard to think of some law that you do like. And if these examples seem ridiculous, that’s the point. They are ridiculous; they clearly contradict the letter and spirit of existing laws, and they are identical in reasoning to President Obama’s executive action on immigration. That’s why legal experts and political analysts from both sides of the aisle have slammed this action.

You may support amnesty, and that’s fine.  In fact, it’s good for Americans to be able to disagree and have our diverse ideas debated in an open society and within the halls of Congress. I personally believe that President Obama’s action is full of bad policies. But all Americans should agree that his unilateral action usurps too much power to the executive branch—and that imbalance of power is detrimental to the rule of law and all our liberties.

 - David Inserra is a research associate at The Heritage Foundation specializing in homeland security and cybersecurity issues.

Originally appeared in the Austin American-Statesman