Last week’s decision — or rather, lack of a decision — from the U.S. Supreme Court of the United States regarding President Barack Obama’s immigration plan serves as a rebuke of the use of executive orders. But equally important, it highlights the problems that are exacerbated by a do-nothing Congress.
The court, which has been reduced to eight members since the death of Justice Antonin Scalia, deadlocked in a 4-4 vote regarding immigration. In late 2014, Obama had issued an executive order that gave qualifying illegal immigrants relief from the fear of deportation, allowing them to apply for work authorization and associated benefits. The program targeted more than 4 million undocumented parents of U.S. citizens, plus noncitizens who were brought to the country as children.
The program was quickly challenged in court, and the Supreme Court deadlock sends the issue back to a lower court. Critics of the program hailed the result as a victory for the separation of powers as spelled out in the Constitution, and as a defeat for an overreaching president. “The Constitution is clear: The president is not permitted to write laws — only Congress is,” House Speaker Paul Ryan said.
Indeed. So Congress should get busy. Immigration reform has been needed for years, but Congress has been derelict in its duties. Decrying a situation while failing to act upon it amounts to legislative malpractice that merely allows the issue to fester.
To start with, we can dismiss Donald Trump’s interest in deporting the estimated 11 million illegal immigrants living in the United States. Trump’s plan reflects a desire to pander to his constituency while containing no semblance of reality. A study by the American Action Forum, a free-market think tank, estimates that the federal government would require 90,000 agents to locate and deport all illegal immigrants; it currently has 4,000 agents.
It is unrealistic to deport 11 million people from this country; it is inhumane to consider removing millions who have children born in the United States, or those who arrived as children and have lived here for decades. Therefore, some middle ground is required. “For more than two decades now our immigration system, everybody acknowledges, has been broken,” Obama said in the wake of the Supreme Court ruling. “And the fact that the Supreme Court wasn’t able to issue a decision today doesn’t just set the system back even further, it takes us further from the country we aspire to be.”
Those aspirations must include a nation in which the president cannot implement sweeping policy through the power of a “pen and a phone.” The Supreme Court deadlock provided necessary reinforcement to the limits of presidential power.
Yet those aspirations also must include a nation in which Congress is willing to address difficult issues rather than simply complaining about the executive branch. While much criticism has been lobbed toward Obama’s use of executive orders, according to the American Presidency Project, he has issued fewer orders than any president since the first Grover Cleveland administration. That was 130 years ago.
Lax enforcement of immigration policy has existed since long before Obama took office, and it has led to a situation that calls for solutions. Having millions of illegal immigrants in this country demands that some of them are provided with a pathway to citizenship, that some of them are deported, and that a broken system gets fixed. Members of Congress should start doing their jobs.
