Thursday, November 20, 2014

Red flags on extending presidential power!

The US desperately needs immigration reform for humanitarian reasons.
In her discussion of Obama's unilateral plan for immigration reform, Ruth Marcus seems most concerned about payback from future Republican presidents. And although we desperately need immigration reform for humanitarian reasons, Marcus is justified in raising a red flag or two. In sum, she offers a thoughtful take on the potential for expanding presidential authority in future administrations:

WASHINGTON -- Every Democrat should be nervous about President Obama's plan for unilateral action on immigration reform.

Not because of the impact on an already gridlocked Congress, or because it risks inflaming an increasingly hostile public. Democrats should be nervous about the implications for presidential power, and the ability of a future Republican president to act on his or her own.

Note that I said nervous, not opposed. In this situation, the executive power devil is in the details of what the executive actually does, both the scope of his actions and the legal justifications for them.
For me, the question is one of double containment: First, is there a limiting principle that would constrain the president's authority to effectively legalize everyone in the country? Second, is there a limiting principle that would constrain future presidents inclined against enforcing other laws with which they don't agree -- and on which they've been unable to convince Congress to act accordingly?
The general White House argument in defense of unilateral action, spelled out for me by a senior administration official versed in the legal details, boils down to the general power of prosecutorial discretion, combined with particular provisions and practices embedded in immigration law.

The official acknowledged that there are clear limits to presidential power -- he can't hand out green cards or create a pathway to citizenship. But the official also noted that presidents have broad authority to set enforcement priorities in immigration; after all, there are about 11 million undocumented immigrants and budgetary capacity to deport perhaps 400,000 annually.

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