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Obama’s immigration maneuver: This isn’t how it’s supposed to work

The president’s policy seems humane, but I lean toward the argument that this is not the constitutional mechanism by which such action should occur.

President Barack Obama addressing the nation Thursday night.
REUTERS/Jim Bourg

If anyone cares to know my reaction to President Obama’s televised speech on immigration Thursday night, here goes:

It was well written and well-delivered. For a guy who seemed to have lost his mojo in the arts of public speaking over recent months, he seemed warm and sincere. But so what?

The content was entirely predictable. Obama has been warning for months that he might, and then that he would, do exactly this.

The text did explain Obama’s moral justification for a new policy that will grant millions of parents who crossed the border illegally, who have been here at least five years, whose children are legally present in America because they were born here, and who register, pass a criminal background check and pay back taxes on wages they earned to come “out of the shadows” of their illegal status.

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In other words, although they won’t become citizens unless they go through a much more arduous process, they don’t have to worry about being deported.

The policy seems humane and manageable. The new status won’t be available to recent or future illegal border-crossers. And, at the moment, most of the criticism is less about the policy itself than about what the (almost entirely Republican) critics view as an illegal, unconstitutional usurpation of Congress’ power to make the laws.

Obama claims that he has the authority to do this, although, awkwardly, he has said in the past that he would like to do it but lacked the authority. The question is whether this amounts to usurping the exclusive power of Congress to make laws or whether it is an exercise of something like prosecutorial discretion, which the leader of the executive branch does have.

On CNN in the aftermath, the very smart legal analyst Jeffrey Toobin said that Obama had a good case that he was within his powers. I lean toward the argument that this is not the constitutional mechanism by which such action should occur, and, as I mentioned, Obama used to agree with that.

On the other hand, instead of holding their breath until they turn blue, congressional Republicans should figure out who has standing to sue so the question can be decided by the courts, which is how the constitutional scheme is supposed to work. I heard on Fox that the governor-elect of Texas, Greg Abbott, has offered himself as the plaintiff in such a challenge, but wiser heads than mine will have to determine whether he has standing. Texas is, I’m pretty sure, on the Mexican border (and used to be on the other side of it), but I’m not sure where that gets the gov-elect on standing to sue.

The other problem with a lawsuit is that the courts have generally tried pretty hard not to get in the middle of lawsuits between the other two branches of the federal government. (See the judicial doctrine of “political questions” and the euphonious issue of “nonjusticiability.”)

There was also a lot of talk about the Repubs, who will soon hold majority control of both houses of Congress, using their power of the purse to stop Obama from implementing his plan by cutting funds. But I’m not sure it takes much in the way of funding to continue not deporting someone (or millions of someones) whom the government has already been not deporting for at least five years.

Impeachment and removal of the president from office is a power the Congress certainly has but it will not be used here and any Republican who engages in loose talk of such an option will be made to sit in the corner. Yes, Ted Cruz, we are thinking of you.

Refusal to pass various budget bills and other must-pass legislation as a way of expressing Republican congressional pique also seems to be off the table for the present. “Must-pass legislation,” to a significant extent, refers to bills that if you don’t pass them, the government starts heading for shutdown. Top Republicans are over the idea that shutting down the government, or even threatening to do so, is a smart move.

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Although the speech lasted only 15 minutes, the big broadcast TV networks decided not to interrupt their excellent entertainment programming to show it. But the all-news cable stations did and then analyzed it for the next few hours.

On CNN, former Speaker of the House Newt Gingrich called it a “Gruber speech,” by which, he said, he meant it was dishonest. The reference, in case you missed that memo, was to Jonathan Gruber, who was an adviser to Obama team in the creation of the Affordable Care Act and recently became famous on the right because he said that the law was intentionally misleading (for example, on what was a tax and what wasn’t) to slip the program past the “stupidity” of the American electorate.

Gingrich, by the way, suggested that his old congressional colleagues stop short of threatening a government shutdown, but declare a policy of aggressive non-cooperation with anything Obama wants, such as, for example, confirmation of his appointees.

On her eponymous MSNBC show, Rachel Maddow took up and expanded one of Obama’s points: that a comprehensive immigration reform bill passed the U.S. Senate by a filibuster-proof 68-32 vote, which included the support of 14 Republican senators, and would have passed the House, also with bipartisan support, but Speaker John Boehner never allowed it to come to a vote. This is maddening and obnoxious, but it is more of a distraction than an argument that because of Boehner’s blocking the bill, the president gained the authority to act on his own that he had previously said he lacked.