The Constitution is a sanctuary from Trump’s executive order

Last week, I published a column at Syracuse.com (my hometown news org) arguing that Donald Trump’s attempt to de-fund sanctuary cities is unconstitutional.  In short, progressive federalism for the win:

The Trump administration would like to shift the burden and cost of carrying out its political agenda of rounding up immigrants on to local cities, their police forces and their taxpayers. Unfortunately for the White House, the Constitution was devised to limit Washington’s powers, protecting states and cities from exactly this kind of federal encroachment.

Read the rest here.

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Executive realities and immigration

The Supreme Court will hear a legal challenge to President Obama’s executive action granting deportation relief to millions of law-abiding unauthorized immigrants living in the United States. The challenged executive action, known as “DAPA” (Deferred Action for Parents of Americans and Lawful Permanent Residents), allows parents of children who received protection from deportation under an earlier Obama executive action to apply for such protection themselves. Those who successfully receive deferred action from deportation are then eligible to apply to legally work in the United States.

Conservatives roundly went ballistic in response to this convergence of humanitarian immigration policy and liberal executive power, calling the president’s program “domestic caesarism,” accusing him of unilaterally decreeing “stealth amnesty.” The legal challenge followed a similar tack, asserting that DAPA amounted to a power grab against the will of Congress and a disregard of the president’s duty to take care that immigration laws be faithfully executed. In short, these opponents of executive action argue that the president’s programs are both unprecedented and usurp congressional power.

This is nonsense. As I wrote shortly before the president announced DAPA, these immigration actions do little more than formalize existing law enforcement priorities while adding a modicum of humanitarian dignity — allowing family units to remain intact, and allowing those who won’t be targeted for deportation to earn an aboveboard, non-exploitative living.

But don’t take my word for it. A group of ex-immigration and Homeland Security officials submitted an impressive brief with the Supreme Court in support of the president’s executive actions stating much the same. They show that the president’s immigration actions are hardly unprecedented, but rather follow a long line of similar actions by most other modern presidents. Moreover, these actions are fully within the reach of presidential power to enforce our immigration laws and protect national security.

For instance, President Eisenhower twice took executive action to authorize the admission of whole classes of immigrants into the United States. In 1956, he allowed roughly one thousand foreign-born children who had been adopted by American citizens abroad to gain entry into the United States. While this circumvented immigration quotas enacted by Congress, Eisenhower argued it was justified to keep families together — particularly for armed service members who adopted children while stationed abroad.

Eisenhower also granted U.S. admission to Cubans fleeing communism after Castro’s revolution. This program was continued successively by Presidents Kennedy, Johnson, and Nixon.

Most notably, President Reagan enacted a deferred action program strikingly similar to President Obama’s. Following the 1986 immigration reform law passed by Congress, Reagan launched a “Family Fairness Program.” This program gave deferred action to family members of legalized aliens.

This program went directly against the reform law enacted by Congress. The Senate Judiciary Committee Report accompanying the legislation stated: “the families of legalized aliens will obtain no special petitioning right by virtue of the legalization” and “will be required to ‘wait in line.’” In fact, a legislative amendment fixing this family split was considered and rejected by Congress.

Undeterred by signals to the contrary from Congress, the Reagan administration gave deportation relief to these family members anyway. Reagan recognized the distinction between granted permanent legal status (which only Congress could do, and opted not to) and merely deferring deportation (which his Attorney General was empowered to do). Like Eisenhower, he was also moved by the humanitarian case for maintaining families.

This is strikingly similar to President Obama’s executive actions. Congress considered and rejected the DREAM Act, which would have created a pathway to citizenship for certain immigrant children. Obama then took executive action to provide this class of immigrants with the next best thing: deferred deportation. And to keep families together, he followed this policy up with DAPA, which would protect these children’s parents from deportation, too.

President George H.W. Bush expanded Family Fairness in 1990 to reach even more families. In response, Congress actually passed legislation grant legal status to family members, going further than what Reagan and Bush could do through executive action.

Most other modern presidents, including Ford, Carter, Clinton, and George W. Bush, have employed some variant of deferred action. This is a practical necessity to efficiently enforce the law because of the scarce and insufficient resources that Congress allocates to our immigration agencies.

But deferred action also protects national security and public safety. Those granted protection from deportation feel safe to emerge from the shadows and trust in society’s institutions, like police and hospitals. “Communities are safer,” the brief argues, “when undocumented immigrants who are either victims of crimes or witnesses to crimes feel secure enough to report the crimes to the police rather than avoid contact for fear of being deported.”

It is also well within the executive branch’s power to enforce the law in a way that furthers humanitarian interests, like keeping families together. “Immigration officials at all levels have been called upon for decades to exercise prosecutorial discretion in a manner that is faithful to the rule of law without sacrificing the preservation of, and respect for, family units to the greatest extent practicable,” the brief reminds us.

These former DHS officials bring a reality check to a needlessly overheated policy debate by grounding President Obama’s executive actions in our history. These actions simply continue a long tradition of the president using humanitarian and national security interests to prioritize which classes of unauthorized immigrants to target for deportation.

One more note on this Supreme Court challenge that isn’t in the DHS officials’ brief. The Fifth Circuit Court of Appeals looked at past uses of deferred action and determined that these programs are usually adopted in “response to war, civil unrest, or natural disaster.” The court determined that none of these exigencies were at play here.

However, Central America is in the grips of a growing humanitarian crisis. It is the most deadly region in the world, as violent transnational criminal street gangs operate with impunity throughout the region. They coerce young boys into joining their ranks and come after those who resist. They rape and murder, leaving bloodshed in the streets and terror in the hearts of peaceable neighbors. Governments have been able to quell or control the violence, and indeed, law enforcement is often implicated in aiding the gangs.

This crisis has built up over years, and it was substantially driving migrant flows into the United States. It’s also what makes the ethics of the decision to deport so fraught. The degree of violence faced by people in Central America is rising to the level of an international emergency, and it’s becoming increasingly hard to morally distinguish Central American refugees from those fleeing Syria.

This is the geopolitical context of the president’s executive actions. By all means, let’s focus our limited immigration resources on removing criminals and security threats. But the situation in the home countries of these migrants makes it all the harder to, in good conscience, oppose a policy designed to give some small legitimacy and relief to law-abiding families in the United States.

Deterrence and deferred action

Last week, I wrote a piece at The Week arguing that conservative objections to the merits of a broader deferred action immigration order from President Obama (so-called “DACA 2.0”) must be either inhumane or outright dangerous.

The foundation for the argument was essentially this:

  1. Immigration officials lack the capacity to remove all undocumented immigrants
  2. They have therefore prioritized removing public safety and national security threats (Prosecutorial discretion)
  3. This prioritization and resource scarcity make it functionally impossible for peaceable, law-abiding immigrants to ever face deportation
  4. These peaceable, law-abiding immigrants are the same group that could benefit from expanded deferred action (we don’t know yet exactly who the President has in mind)
  5. A deferred action order would essentially notify this group that they are not at risk for deportation, thus allowing them to live and work freely
  6. Thus, his executive order likely amounts to little more than (1) reaffirming existing policy (the “Morton Memo”) + (2) notice

So conservative opposition must either be to (1) existing policy — which would be dangerous in that it would jeopardize public safety and national security (see point 2) — or to (2) notice — which would be cruel in that it would keep immigrants in the dark even though the immigration system will never deport them, driving them to exploitative work.

Danny Vinik has a post at The New Republic addressing the notice point. Vinik worries that the notice that deferred action provides crosses a legal line from prosecutorial discretion into policymaking. This is so because secret prosecutorial discretion (with no notice) preserves a deterrent against law-breaking (here, entering/remaining in the United States illegally).

Vinik relies on a law review article by law professor David Price. Under Price’s analysis, preserving the deterrent value of the law is key to furthering the will of Congress in the face of scarce prosecutorial resources. “[D]eclining to prioritize certain cases, as the executive branch might properly have done, may have very different effects from an announced, categorical policy like DACA,” Price asserts. “While the former preserves the deterrent effect of federal statutes by leaving all individuals covered by the statute in some jeopardy, the latter removes the risk of enforcement altogether. It thus contradicts the statutory policy to a degree that mere prioritization of enforcement resources does not.”

Vinik rightly notes that Congress legislates with many different goals in mind, and deterrence is just one of them. So how significantly should we weigh the deterrent goal here?

I’ve argued that the humanitarian costs outweigh the deterrent benefits of keeping prosecutorial discretion hazy and un-notified. For the sake of “supposedly discouraging migrant flows,” critics would have “millions of immigrants to needlessly live with the specter of deportation hanging over their heads. This would condemn them to living in the shadows and working in tenuous, often-exploitative conditions — even though immigration officials have no interest in deporting them.”

Even under closer scrutiny, I think this basic analysis holds up. To assess the deterrence benefits of going without deferred action, we must speculate a bit about who, exactly, might constitute the benefited group. One group of immigrants commonly mentioned is the parents of children granted deferred action under DACA. If so, can we really believe that the mere threat of potential deportation will cause any significant number of them to self-remove from the country? Would they really leave their (quasi-legalized) children behind, or even less likely, give up their children’s safe harbor from deportation?

In my assessment, the deterrent benefits for this group approaches naught, but the humanitarian costs remain huge. Though DACA children face no threat of deportation, their parents still struggle to earn a safe living and provide for a stable upbringing for their children under the threat of work penalties. This deepens the odds against DREAMer kids to do things like graduate high school or go to college.

We must also remember that any grant of deferred action will be (a) temporary, falling short of full legal status, and (b) require that its beneficiaries have lived in the United States for some years. Point (a) thus does preserve some deterrence value while removing the short-term humanitarian costs of the illusory deportation threat. Point (b) means that any deferred action will not benefit new arrivals, and therefore shouldn’t incentivize increased illegal immigration.

Skeptics might quibble with this. They might argue that deferred action shows that the U.S. is getting soft on immigration, and will eventually legalize everyone. A new arrival just needs to hang low and give it time. Moreover, they could point to the border child crisis, driven in part by misinformation throughout Central America over who is eligible for deferred action under DACA. Smugglers and coyotes may have lied to families and led them to believe that newly arrived children would be granted protection from deportation, even though this is plainly not the case under DACA.

But we can hardly afford to let our immigration policy be dictated by coyotes and deliberate misinformation. We would also face a diminished ethical quandary if a flood of adults arrived at the border, in comparison to that which we face from young children fleeing violence. Moreover, ICE already concentrates most of its removal forces on stopping new arrivals at the border. We therefore might already be equipped to blunt any unintended effects of expanding deferred action for immigrants already present.

Vinik and Price are right that there is surely some deterrence lost from expanding deferred action. But just how much deterrence is lost is a more pressing question. We must remember to consider the specifics of what the policy actually accomplishes and who it reaches to evaluate how much deterrence has really been forsaken. It might be the case that the deterrence cost is a price worthy paying.

Weaponizing Obama Derangement Syndrome

Greg Sargent reiterates the dismal conservative calculus weighing down immigration reform in the House of Representatives. “The problem here is not Obama; it’s Republicans. House Republicans are not willing to figure out if there is any set of conditions and terms un[d]er which they can support some form of legal status for the 11 million. [. . .] All the talk about ‘not trusting Obama’ is just a smoke-screen designed to obscure these basics.”

House Republicans have maintained that they don’t trust Obama to enforce any immigration reform that they pass, therefore no reform can be passed. Senator Chuck Schumer quickly called their bluff by proposing that any immigration reform passed today not take effect until after Obama leaves office, exposing the distrust issue for the smoke-screen that it is.

But it may be this exact distrust that could breathe some life into immigration reform in the House. If Republicans truly believe that the president will go it alone and take unitary executive action, then maybe this would propel them to make a serious effort at legislative immigration reform. Obama Derangement Syndrome could jolt Congress out of gridlock.

Obama Derangement Syndrome has many strains and symptoms, but the relevant ailment here is the ardent psychological belief among many conservatives that the president cannot be trusted to enforce the law. They point to regulatory actions that the president has taken to delay Obamacare implementation; to slow the rate of deportations; to regulate pollution; and to stop defending the discriminatory Defense of Marriage Act in court. To conservatives, these acts of executive discretion show a blatant disregard for the letter of the law that comes out of Congress.

This distrust of a go-it-alone executive then becomes a self-fulfilling prophecy. Because Congress cannot pass legislation, the president must pursue executive action to fill the vacuum of basic governance. Because Congress is severely broken on the issue of health care, the president has had to rely on questionable legal interpretations to fix parts of Obamacare and delay the troublesome employer mandate. Because Congress won’t act on climate change, it has fallen on the Environmental Protection Agency to take regulatory action against greenhouse gases.

But heightening Obama Derangement Syndrome – bolstering the conservative fear of unitary executive action – may be exactly what would prod the House to move on immigration reform. Republican Representative Mario Diaz-Balart told the Washington Post, “I’m convinced that if we don’t get it done by the August break, the president, who is feeling a lot of pressure from having not done anything on immigration reform, will feel that he has to act through executive action.”

This changes the calculus for Republicans on immigration reform. Before, the consequence of inaction was just a continuation of the broken status quo system that many congressional Republicans aren’t particularly troubled by. Now, however, in the face of an emboldened executive, the consequence of legislative inaction may be a regulatory solution that is both liberal and crafted without congressional input.

This could be a tremendously useful negotiating chip for the president. And it’s not an empty threat, either. Regulatory agencies get the benefit of the doubt when they stretch the bounds of the law, so long as their interpretation of the statute is reasonable. (This is so-called Chevron deference in legal jargon.) This insulates many agency actions from legal challenges, giving the president a powerful tool as an end-run around Congress to achieve policy goals.

Congress has been stuck in paralysis since 2010. Driven by split party control, political polarization, and perverse Republican incentives pointing toward obstruction as a path to power, the legislative process has ground to a halt. But what might compel obstinate Republicans to actually legislate is fear of a unitary president. So while liberals intuitively scoff at breathless accusations that the president flouts the law, perhaps they ought to be fueling the conspiracy. For when it comes to the gridlock-inducing effects of Obama Derangement Syndrome, the disease might be the cure.