The Ethics of Executive Action on Immigration

On November 19th, President Obama took executive action on immigration to widespread praise from immigration activists and outrage from some Republicans. Though most of the attention has focused on the new Deferred Action for Parental Accountability and the expansion of Deferred Action for Childhood arrivals, President Obama’s executive action is complex and includes increased border security, the replacement of the controversial Secure Communities program with a new Priority Enforcement Program, and the expansion of visas for highly skilled workers. (The Department of Homeland Security’s summary with links is here; the Immigration Policy Center has its analysis here.) (Prerna Lal has a nice analysis of the good, bad, and ugly of these reforms here.)

Much has been made of the fact that the decision results from an order of the executive branch of government. Some Republicans have questioned whether President Obama had the legal authority (he probably does though for a dissenting view see here). The most succinct expression of this concern comes from a recent Saturday Night Live skit which parodies Obama as trampling on the legislative process.
There are a few responses to this concern. First, Obama is not making laws, but choosing how to enforcement them. It is not feasible (or desirable) to deport every person who does not have a legal right to be in the country, so executive discretion is itself necessary and not really that controversial.
Second, the alternative, as Stephen Colbert joked, was for Obama to have worked with Congress to do nothing together. Indeed, a case can be made that Obama should have taken action earlier given the impasse in Congress and the high stakes of inaction for many people. Moreover, as Obama pointed out, if Congress doesn’t like what he did, it can pass a bill.
Third, it’s worth noting that Obama is only providing temporary relief from deportation that lasts only three years. It is likely that people who qualify for deferred action will also qualify for legalization when and if Congress passes legislation, but Obama’s action does not guarantee this. Furthermore, people who qualify are not eligible for Federal Benefits, including the Affordable Care Act. (This is an important limitation, though a lamentable one in my view.)
Finally, it’s worth remarking how limited the action and the criteria for deferral is. Though perhaps 5.2 million unauthorized migrants may be eligible, this still leaves another 6 million in fear of deportation.
Nonetheless, the folks at Saturday Night Live are on to something. One topic that is not sufficiently discussed is how much of immigration policy is left up to bureaucratic discretion. Anybody who has dealt with the immigration system quickly learns the enormous power of officials to make life-altering decisions, including detaining and deporting people and preventing family members from reuniting, often with little to no real accountability for error or injustice.
Obama’s executive order is not simply about granting relief to unauthorized immigrants. It also includes increased border security and the directive to prioritize the deportation some of people with criminal convictions. Another measure that has received little discussion allows technological entrepreneursto immigrate on the grounds that this provides a substantial public benefit. Furthermore, Obama has instructed the Department of Homeland security to bolster military recruitment by granting parole to family members of people who enlist in the U.S. Armed forces.
We may support some or many of these measures, but for each of them it makes senses to ask whether they should be realized by executive fiat. According to a recent CNN Poll, Americans are largely in favor of Obama’s actions, but are opposed to the fact that he took them.
How do we distinguish between legitimate executive action and executive actions that are morally questionable?
One way of making this distinction would be to suggest that when the Executive implements laws passed by Congress in the way Congress intended, its actions are legitimate. There are a number of issues here, including the difficulty of determining what Congress “intended” and indeed the coherence of interpreting Congress members’ intention for circumstances they did not foresee. The bigger problem is that Obama’s actions use the administration to mimic the effects of legislation, so it is hard to maintain that he is doing what Congress intended. This should not surprise us given since the fact that Congress has been unable to pass immigration reform suggests they do not support this sort of measure.
One way out of this dilemma is to move away from Congress to the general public. Opinion polls show broad support for legalization. It might be possible to claim that Obama is fulfilling the will of the people. This doesn’t help, though, since the Executive’s role is enforcement and administration, not legislation, something that the public appears to have noticed.
At the same time, I’m inclined to think that Obama’s action was the right one, at least insofar as Deferred Action. Fear of deportation has enormous negative consequences for many people and extraordinary measures can be justified to prevent severe harms. In many ways Obama has forced the Republican-controlled Congress’s hand. They can pursue likely unpopular measures of attempting to prevent the Executive Order through the courts or by shutting down the government. Or they can pass legislation which will most likely have quite similar effects.
Barring the possibility that an emboldened Tea Party will be able to mobilize Obama’s action to shift the immigration debate toward a more restrictive position, people seeking progress measures on immigration have reason to celebrate.
This suggests that political morality depends greatly on context and strategy and that it is difficult to give a general account of when political actors should exercise restraint and stay within widely accepted conventions and when they should audaciously violate these conventions in an effort to achieve good. (Notice that executive reach can only be supported if it indeed promotes the good.) Though Obama’s actions largely promote the good given the political constraints, not all of what he has done should be celebrated. Also, discretion can easily turn to abuse, especially when it is used to negotiate issues that the public disputes. In sum, we should celebrate much of this Executive Action, but nonetheless should lament that executive action was necessary.

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