Fast forward to Washington DC, November 2014. Young Max, now a manly Millennial, remorseful for having sat out the mid-term elections, and disgusted with the politicians’ threats and counter-threats on immigration, makes a new wish: For just one day, one Republican (John Boehner) and one Democrat (Barack Obama) must only speak the truth. The wish is granted. The usual round of press conferences and TV appearances are held, and questions are asked of President Obama and House Speaker John Boehner.
Mr. President, you’ve said that, given the failure of Congress to enact immigration reforms, you will use the full extent of your legal authority and take executive actions before the end of the year to fix our nation’s immigration system. What specific actions will you take?
Before I answer that, let me admit a few things. I promised to push for immigration reform during my first year in office, but didn’t. I blamed Congress for failing to enact immigration reforms, while claiming that I lacked authority to disregard the laws on the books. Hoping to show Republicans that I could be tough on immigration, I became the “Deporter in Chief.” But then, a few months before the last Presidential election, I did what I said I could not do and authorized the Homeland Security Department to roll out a program for Dreamers known as DACA (Deferred Action for Childhood Arrivals). That move brought out Latino voters in droves and may well have been the proximate cause of my reelection. Pressed by immigration activists to stop breaking up families by deporting parents, I asked the Secretary of Homeland Security to study alternatives. Then I deferred action on his report, and then I deferred executive action in the summer, and deferred again in the fall at the behest of endangered Democrats who worried that they’d be trounced in the mid-terms. It didn’t matter. They were trounced anyway, and I’m now facing a Congress controlled by the GOP. So having learned that I must talk truth on immigration, here’s what I’m going to do very soon.
I’ll order reforms that allow a 2.5 million to 5 million undocumented to receive work and travel permits (except for recent arrivals, hardened criminals and terrorists). I’ll authorize measures that will speed up — ever so slowly — the immigrant visa backlog. I may allow early filing of employment-based green card applications. This would grant professional and skilled foreign workers and their families work and travel permission sooner than now. But they’ll still be stuck in the waiting line just as long and won’t get green cards until their visa numbers are current. I could recapture 600,000 or more immigrant visa numbers that my own and previous administrations squandered by not using them before the end of each fiscal year. I could say that spouses and kids would not be counted in the employment-based green card quota. I could make USCIS stop denying benefits to people on technicalities or imagined grounds of ineligibility. I haven’t decided on these yet.
Of course, I’ll describe these executive actions as generous within the bounds of the law. I know that I’ll be accused of having bypassed the Republican Congress on immigration reform. Some in the media will say it’s ”Caesarism” or “caudillismo.” But others will come to my defense. Still, the constitutional law professor in me worries that I may be going too far, and that some future Republican president will use my action as precedent to ignore the Constitution and take the country off a cliff.
Well obviously executive action is right when a Republican holds the presidency and wrong when it’s held by a Democrat, especially Barack Obama.
Yes, I’ve used incendiary language about “executive amnesty” but I’ve been no less flamboyant and no less insincere than others in my party. Republican National Committee Chair Reince Priebus called executive action by the President on immigration ”a nuclear threat” and said it would be like “throwing a barrel of kerosene on a fire.” But don’t believe him. He’s the same old Reince who suggested after our 2012 loss that comprehensive immigration reform must be embraced, that is, until the Tea Party caucus set him straight. I also liked the whopper Mitch McConnell lobbed when he said he’d “naïvely hoped the President would look at the results of the election and decide to come to the political center and do some business with us.” Mitch is never naïve. He knows that the election proved nothing because we offered no agenda to govern. Mitch and I both know how much we need to show the public that Republicans — when we control Congress — can pass meaningful legislation. We know we can’t be seen as the party of “just say no.” If we got immigration behind us, we could “do business” with the President on taxes, trade, energy and other issues that our rich donors demand.
So, when President Obama takes executive action on immigration, as I’m sure he will, the Tea Party wing of the GOP will have conniption fits. Many of them will accuse him of impeachable acts. He needn’t worry. His executive actions are no more aggressive than other Presidents, including Republicans. These are by no means “high crimes and misdemeanors.”
We will also threaten to sue him, but we know that won’t work. The courts won’t recognize the standing of members of Congress to challenge his enforcement discretion. We will threaten to hold up approval of Loretta Lynch, his pick for Attorney General, but she’ll get through because the Democrats can exercise the nuclear option and prevent a filibuster.
We’ll also threaten to use the budget process to starve his immigration agency, U.S. Citizenship and Immigration Services, of the funds needed to issue work and travel permits to the undocumented. He need not be worried. Although it could lead to a government shutdown, it won’t. Mitch McConnell and I are too savvy for that. We know that the public blamed the GOP for the last shutdown, and will likely do it again. In any case, USCIS is mostly funded by user fees which applicants for benefits must pay. So a budget standoff will not work.
But the biggest lie of all is when I said recently that “[it's] time for the Congress of the United States to deal with [immigration]“. I could resolve this problem easily if I weren’t so fearful of the flack I’d get from the Tea Party and Fox News. I could disregard the Hastert rule and just call up the Senate comprehensive immigration reform bill, S. 744, for a vote. Despite the election, there are still enough House votes to pass it. It actually is the smart thing to do. It might be the first step toward showing the growing demographic of Hispanic, youth and single female voters that we’re not just a party of older white, mostly male voters. It might allow our 2016 presidential candidates to jump the “blue wall.” Truth be told, however, I won’t bring S. 744 up for a vote. Pretense and posturing are so much easier than leadership and governing. I’ve got to go now, because I’m getting all weepy — for myself and my missing spine.