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Debating the implications if Obama acts on immigration

November 19, 2014 at 6:45 PM EDT
President Obama will give a prime-time address to announce his plan to shield up to 5 million immigrants from deportation, setting up a potential confrontation with the Republican-led Congress over immigration reform and executive authority. Gwen Ifill gets debate on the president’s action from Frank Sharry of America's Voice and Josh Blackman of the South Texas College of Law.
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GWEN IFILL: Hundreds of thousands of undocumented immigrants have been deported since President Obama took office, as efforts at comprehensive immigration reform have fallen by the wayside in Congress. Today, the White House announced the president has come up with a work-around, an executive action that would alter immigration policy without congressional action.

For more on the reach of presidential power when it comes to immigration policy, we turn to Frank Sharry, founder of America’s Voice, an immigration reform group, and Josh Blackman, a constitutional law professor at South Texas School of Law.

Frank Sharry, Senator John McCain and others have said this is an unconstitutional move that the president is taking. What’s your response to that?

FRANK SHARRY, America’s Voice: Not at all.

It’s well-established through historical precedent, and Supreme Court case law, and legislation that, look, every law enforcement agency has the right to decide, how are they going to use limited resources? Are they going to after everyone? Well, they don’t have the resources, so they have to set priorities, target resources.

The discretion is absolute. So it makes sense that President Obama’s contemplating saying, these people here are low priority, deep roots, been in the country, have citizen children. Let’s protect them. And then we will use the resources to go after the bad actors, the drug dealers, the national security threats, the serious criminals.

So, you know, look, and over the past 60 years, every president since Eisenhower, including Reagan and George W. Bush, has used executive action in the immigration arena. George H.W. Bush took a step in 1990 to legalize roughly half the undocumented population with work permits. There was no controversy about executive action then, and there shouldn’t be now.

GWEN IFILL: Josh Blackman, what is the constitutional argument here?

JOSH BLACKMAN, South Texas College of Law: So the president has a duty to take care of the law and to faithfully execute it.

So, while he does have discretion, I don’t agree that it’s absolute. I think the important point to make is, this goes far beyond what has been done before. It’s unprecedented. Frank mentioned that George H.W. Bush granted deferrals for 1.5 million. I think the key fact to remember is, these are people who are related to those being naturalized by the immigration laws.

So, it’s simply not the case. Here, President Obama imposed DACA for the dreamers. And now he’s going to add five million, six million more. None of these people under statutory law have any pathway to citizenship. This is really different than what was done before.

GWEN IFILL: Do you agree with the critics who say this is granting amnesty to these people who are not being deported?

JOSH BLACKMAN: Well, no, it’s not granting amnesty. You’re not giving them citizenship.

But what you are doing is giving them a legal status and working papers. What this does is make them effectively untouchable by future presidents. So, though in effect there’s no legal status, it makes it very difficult for any future presidents to take them out of that status.

So the president is giving the next person in office this situation to deal with.

GWEN IFILL: Now, of course, Frank Sharry, we haven’t seen what the president is going to propose specifically, but we know what’s been reported.

And one of the phrases that’s been used is that he’s going to grant temporary protective status to these people, to four million of the five million. What does that mean?

FRANK SHARRY: Well, it’s actually — it’s more likely he’s going to use deferred action. It’s something he used for about a half-a-million young people called dreamers. He extended relief to them in 2012, and it’s basically the right to work and a stay of deportation until Congress acts.

Look, executive action is no substitute for legislation. We need a Congress that will pass comprehensive immigration reform. The Democrats in the Senate led an effort in 2013, passed a bipartisan immigration reform bill, but John Boehner and the House Republicans blocked it. They have blocked is for over 500 days.

And so, quite frankly, the real question is, do you want someone to fix the system under legal authority or maintain the status quo?

GWEN IFILL: But, you know, some advocates say that this didn’t go far enough, that the parents of the dreamers didn’t — the children who were allowed to stay who were born here are — still aren’t covered by this, and that immigrant workers aren’t covered by this.

FRANK SHARRY: Look, we need to cover all 11 million people.

Look, we’re talking about a population the size of Ohio that’s living in the country outside the statutory frameworks and protections of this country. It’s unhealthy for our democracy. It is not good for the families and Congress has to act eventually.

In the meantime, the president can’t rewrite the law, but he can set priorities and say let’s go after the bad guys. Let’s protect the good guys. Do it within my lawful authority. You know, honestly, we won’t solve the problem until Congress steps up.

GWEN IFILL: Josh Blackman, is this the camel’s nose under the tent?

JOSH BLACKMAN: So, I think the way we have to look at this is, what changed?

Until very recently, the president said over and over and over again he doesn’t have the authority to do this. Now he says his position is legally unassailable. I would like to see the memorandums from the Department of Justice explaining, what is the legal basis for this? What does this mean? What are the implications of this?

If he can do this, what else can he do? And we need to have this debate before the action happens, not afterwards.

GWEN IFILL: Is part of your concern that the people who will now be given this temporary protection will also be on a path to citizenship?

JOSH BLACKMAN: Well, I think the bigger issue is what this means for future presidents.

So, if I can indulge for a second, imagine a President Ted Cruz decides not to enforce environmental laws or imagine if a President Rand Paul decides not to enforce a corporate income tax. The president’s ability to suspend the laws and not enforce them raises serious implications.

I want to see what the legal implications are. Where are the limits of the ability of the president to not enforce the laws? I want to see, what are the memoranda making that point?

GWEN IFILL: Frank Sharry?

FRANK SHARRY: Well, look, I understand that a lot of Republicans are against the way the president is doing it, but let’s discuss the substance of it.

He’s going to take people who are deeply rooted in America, who have been living here for more than a decade in many cases, who have U.S. citizen children, and say, are we going to rip those families apart and spend taxpayer dollars doing that?

GWEN IFILL: But Josh Blackman makes the point, what if it’s something you don’t agree with that the president decides to do?

FRANK SHARRY: Look, what I’m familiar with is, in the context of immigration law, it’s rooted in Supreme Court decisions, it’s rooted in legislation, it’s rooted in regulation.

There is nothing extraordinary about this. It’s quite similar to what George Herbert Walker Bush did in 1990. There was no controversy there. Ronald Reagan protected hundreds of thousands of Nicaraguans. No controversy there. This is, I think, a bit of a smokescreen designed to obfuscate the fact that people don’t want immigrants to be integrated into America.

GWEN IFILL: Josh Blackman, what is the alternative if this isn’t the right approach?

JOSH BLACKMAN: Well, simply because the president doesn’t get what he wants doesn’t mean he can do it anyway. We had an election. His party didn’t do very well. He had legislation. It didn’t go anywhere. He lost.

And sometimes, when you’re a politician, you have to take your losses and go home, despite the humanitarian concerns which I think are significant and Frank make valid points. You don’t get to do what you want when don’t have the votes in Congress. And each time the president has been in office, every successive elections, he has lost seats.

And now in his lame-duck session, when the Congress is about to begin its last term, he’s doing it now, when there are more elections to hold accountable. So I really think the fact that the president cited this gridlock in Washington as a justification for his executive actions is really a misnomer. He doesn’t have the power and he is choosing to do it anyway.

GWEN IFILL: So there is no alternative? Is that what you’re saying?

JOSH BLACKMAN: Right.

Until the Congress is willing to approach and make a compromise, there’s nothing that can be done. And, frankly, that’s how our system works. Right? Our Constitution is not designed to be efficient. Gridlock is part of our constitutional order. For better or worse, we have checks and balances for a reason.

GWEN IFILL: Josh Blackman, professor at the South Texas College of Law, and Frank Sharry with America’s Voice, thank you both very much.

FRANK SHARRY: Thank you.

JOSH BLACKMAN: Thank you so much.

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