The election results are in and Republicans will soon be in control of the entire Congress, but President Barack Obama is still promising to issue an executive order on immigration very soon. However, if the reason Obama wants to use executive-order power instead of having a comprehensive immigration law is that Congress cannot pass such a law (as he stated repeatedly), doing it before the next Congress starts working is illogical because the chances of immigration law being passed next year are much higher now; so insisting on issuing this order seems superficial and purely political.
It was also very cynical to wait until after election in hope not to sink vulnerable Democrats and even more cynical to do it now when the voters showed that his presidential agenda was not what they wanted.
But let’s put this aside and look at other aspects of this endeavor. In his article on this in Slate, Eric Posner, a law professor, argued that the president, as a representative of the executive branch, has prosecutorial discretion what law to enforce and whom to prosecute under each law just because there is never enough money to enforce all laws and prosecute everyone. He uses an example of jaywalkers, who are quite often not stopped even if a police officer is present. The only limit on presidential power is that he cannot enforce the laws in a way that favor or disfavor specific ethnic groups. Since this article summarizes the typical arguments in support of Obama’s planned executive action, it makes sense to analyze this line of reasoning.
Jaywalking is probably a good example to start with. Yes, I would guess it is a common practice for police officers to ignore jaywalkers altogether (thus choosing which law to enforce) or stop just the most brazen ones (thus choosing whom to prosecute). And if the former may make some sense (jaywalking is less dangerous than speeding), doesn’t the latter mean that a police officer can let his wife go but stop his mother-in-law? I am from the Soviet Union and this is how all laws were applied there – selectively, and trust me, that was not good.
Even if lawful, is it good practice?
So even if this is all lawful, we should ask whether this is a good practice and whether our president should use that approach. And even if this logic was used before by various presidents, did it make our country better and more law-abiding? Do more people believe in the rule of law or less? In my mind, it makes sense that if a law cannot be applied consistently, it should not be on the books and if it is on the books it should be applied to everyone or at least randomly. Doesn’t this country value equality?
Continuing our analogy with jaywalking, imagine a police chief announcing that, because he does not have the money and the City Council is not willing to adjust the law by reducing the area where jaywalking is a violation, he will stop enforcing jaywalking ordinance anywhere but Main Street. Doesn’t this announcement make it way different from police officers’ using discretion in the field and make it look like the police chief is actually changing the law, at least for all practical purposes? I do not think that the City Council would look kindly at that. It would be OK if the City Council makes such a declaration (but in this case they could just revise the ordinance) but not a police chief. Obviously, Congress, as a legislative body, is an equivalent of a City Council while a police chief (or a mayor) is a part of the executive branch.
But wait, there is more to all this, as they like saying on TV. Imagine that the police chief announces that he will instruct his police officers to stop only minorities, and whites will be allowed to jaywalk; everyone will cry foul because the discrimination is obvious. But what if he says that only those who drive a BMW, Mercedes, Porsche, or Jaguar will be ignored and everyone else will be stopped? Clearly, minorities own fewer of those luxury brands and this practice will effectively be discriminatory. Obviously, Obama’s executive order will benefit the Latino community significantly more than any other (that is why they are pushing for it so hard) so I would think that this action will be, in fact, giving advantages to certain races more than others, making it, in effect, discriminatory and thus illegal, even by Posner’s standards.
What makes this whole thing even worse is Obama’s take on existing laws: Many times he expressed his opinion that existing laws are unfair and must be changed; that gives an impression that he wants to use his executive power not because he lacks money but because he is opposed to the existing laws to begin with, effectively changing the law he doesn’t like (especially, if we consider that he hopes to gain some political favors along the way by issuing this executive order). No other president who used his executive power to exclude certain groups from immigration law enforcement had criticized existing laws that strongly before doing it, nor were they trying to cater to certain political or racial groups (nor was it done right after Congress failed to act on immigration).
So not only will this executive order disproportionally benefit a certain ethnic group but it seems intended to benefit that specific group for the president’s and his party’s political gain (and it is obvious from Obama’s constant promises to the Latino political organizations) thus making this executive order clearly discriminatory.
Looking at the real reasons
It is interesting that even though Posner justifies the need for and legality of prosecutorial discretion by limited financial resources, none of the offered examples of presidents using that power in the past had anything to do with money; they always did it for economical, humanitarian or political reasons (good or bad is another question). In other words, the legal justification for prosecutorial discretion is limited resources but the real reason for using it is not.
Of course, the actions of Obama’s administration only support my theory that Obama’s intended actions are driven by his political views and expediency rather than lack of money. For example, the Department of Justice sued Arizona for trying to enforce the immigration law but is turning a blind eye to the actions of the so-called sanctuary cities who actually announce that they will not enforce this federal law. For two years I have been trying to pry a justification for this from the Department of Justice but so far unsuccessfully.
And if this administration did indeed deport a record number of illegal aliens (by the way, a term used by the Supreme Court in its decision), it is because that number includes those caught at the border, where we see the record number of attempted border crossings. So let’s stop trying to find justification for Obama’s activist policies and discuss what is good or bad for the country.
Ilya Gutman is an immigrant from the Soviet Union who now lives and works in Marshall, Minnesota.
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