Slapped down by the New Orleans-based 5th Circuit of Appeals, President Barack Obama has little recourse to reinstate his Nov. 21, 2014 executive order on immigration. Insisting that he acted unilaterally because of gridlock in Congress, Obama found little sympathy when Browsville, Texas District Court Judge Andrew S. Hanen stayed Obama’s attempt Feb. 17 to circumvent Congress. Responding to a suit filed by 26 GOP governors, Hanen blocked Obama’s executive order designed to prevent some 4.3 million children of undocumented workers from possible deportation. While deportation was highly unlikely since the Immigration and Naturalization Service lacks the resources for large-scale deportations, Obama’s move was largely symbolic but rubbed Republicans governors and Congress the wrong way. Since sworn in Jan. 20, 2009, Obama hasn’t figured out how to work with Congressional Republicans.
Getting rebuked in the 5th Circuit Court of Appeals doesn’t bode well for the White House trying to impose unilateral executive orders. Upending the tripartite structure of U.S. government, the White concluded that Obama was within his authority to act where he couldn’t get cooperation in Congress. White House lawyers argued that Obama’s executive order would have cost the state millions in immigration enforcement, education and health care costs, despite the fact that the INS would not enforce deportation laws. Arguing the White House acted to fix a “broken immigration system,” the 5th Circuit Court disagreed with Obama’s claims, leaving Hanen’s injunction in place. Fifth-Circuit Court Justices Jerry Smith and Jennifer Walker Elrod didn’t believe the White House would win on appeal. What’s at stake to the 5th Circuit Court is letting Obama resolve immigration issues in Congress.
Whatever went wrong with Obama’s relationship with Congress, including passing Obamacare March 23, 2010 over 100% Republicans objections, the federal courts don’t look kindly on unilateral executive decision-making. When it comes to immigration reform, the White House can’t have both ways: Not deal with Congress and make unilateral executive decisions. Whether or not Obama overstepped his Constitutional authority is anyone’s guess. Judging the 5th Circuit ruling, they certainly think so. When it comes to decisions that impact the budgets of the states, it’s going to be difficult for the White House to argue it’s OK to make one-sided decisions with fiscal impacts on states. Since the late President Ronald Reagan passed the Immigration Reform and Act Nov. 6, 1986, not one Democratic or Republican administration has repeated the feat.
Reagan’s 1986 IRA attempted to tighten penalties on employers who willfully hire undocumented workers, letting foreign workers here before Jan. 1, 1982 to stay in the country with work permits if they had no criminal history. Over the just under 30 years, the IRA did nothing to enforce employer breaches, hiring illegal aliens with fake Social Security numbers across all major U.S. industries. Hiring illegal aliens with fake documents allowed the federal government to subsidize major government entitlement programs, offsetting the fiscal imbalances in Social Security and Medicare. Whether admitted to or not, without the payroll taxes of illegal immigrants, Social Security and Medicare would be broke. Democrats and Republicans like to kick around the immigration football but know that without the illegal population both major government programs would go under.
While there’s nothing wrong with the intent behind protecting children of illegal immigrants, the White House must work harder with Congress to pass immigration reform if that’s really what both parties want. House Speaker John Boehner (R-Ohio) has signaled that any form of immigration reform is dead between now and the 2016 election. White House officials told Hanen that some 108,000 illegal immigrants were already protected under a three-year deportation reprieve before Hanen’s injunction went into effect Feb. 17. White House officials have sought to heap political pressure on the GOP to go along with Obama’s executive order or face repercussions with Latino voters in 2016. For the 26 GOP governors, the issue had more to do with the potential costs of keeping millions on illegal immigrants and their children in the country without getting more federal help.
Whatever went wrong with White House’s relationship with Congress, Obama proved recently he could play ball on a Foreign trade bill. If the White House can get on the same page with the GOP on foreign trade, prompting loud objections from Democrats’ left wing led by Sen. Elizabeth Warren (D-Mass.), he can figure out how to negotiate immigration reform. One thing’s for sure: Both parties don’t want to give up the lucrative payroll taxes from illegal immigrants to Social Security and Medicare. While there’s nothing wrong with executive orders as long as there’s consensus on both sides of the aisle, Obama must go the extra mile like he did with the Foreign Trade bill. Whatever happened in the past, it’s still possible for both sides to save face and find some common ground. Executive orders are an admission of failure, not something to use to avoid working with Congress.
