Immigration: Presidents Have the Power, but Does Obama Have the Guts?

Protecting immigrants from deportation, permitting them to come out of the shadows, is the right thing to do. The country will be strengthened when these people are allowed to pursue their family lives, work and education without fear. Upward striving immigrants, determined that they and their children get ahead, will infuse the nation’s economic, cultural and intellectual life with badly needed energy and creativity.

So let’s not speculate about the political winners and losers of the immigration battle as political writers are doing. We have had enough analyses of whether it strengthens the Democrats with Latinos or hands the Republicans a big weapon in their war against President Barack Obama. Without delay he should sign an executive order protecting millions of immigrants from deportation.

There are 11.7 million immigrants living in the United States without the documents they needed to enter the country. Despite the clamoring from the anti-immigrant crowd, sending all these people back to their home countries is a physical and economic impossibility. It would require untold numbers of buses, planes and trains to deport them, plus a large army of immigration officers to find them and carry them off.

Everyone recognizes this, except for a few extremists. That is why the Senate, in a bipartisan action, voted 68-13 in 2013 for a reform bill that offered the immigrants a long path to citizenship. The House, with Speaker John Boehner terrified of the tea party faction, wouldn’t act on it.

Obama should have quickly stepped in at the time with an executive order beginning the legalization process. But afraid of hurting Democratic Senate candidates in conservative states, he didn’t do it. Most of them lost anyway, and enough Latinos, offended by his inaction, stayed away from the polls and helped cost the Democrats the election.

Now he seems ready to act. Julia Preston reported in The New York Times last week that Obama is expected to provide legal documents to as many as 5 million undocumented immigrants.

The Migration Policy Institute said that a substantial number could come from expansion of the Deferred Action for Childhood Arrivals, created by an Obama executive order in 2012 to help young people who came here with parents or other relatives who crossed the border without documents. As many as 1.2 million of these young people, called “The Dreamers,” are eligible for protection against deportations and for work permits. A major expansion of the Dreamers program could make 1.9 million more eligible.

Millions more could be added if Obama extended protection to the parents and spouses of the Dreamers. What happens now is that parents are deported and their Dreamer children face the agonizing choice of accompanying them or staying in the United States alone or with relatives.

It would, Preston wrote in the Times, “have a large and, White House officials hope, swift impact on the daily lives of many immigrant families, removing fears that relatives could be separated from one another by deportations.” Like their Dreamer children, they would be eligible for work permits and, in some states, driver’s licenses.

A subsequent president, of course, could repeal the executive order. That’s happened in the past.

The expectation of such a move by Obama has sent his foes into a mad round of impeachment threats. They come from right-wing members of Congress and conservative Washington Post columnist Charles Krauthammer. A calmer critique, and one that will form the heart of the assault on Obama, is by Ross Douthat, The New York Times conservative op-ed columnist. He wrote, “No defender of Obama’s proposed move has successfully explained why it wouldn’t be a model for a future president interested in unilateral rewrites of other areas of public policy (the tax code, for instance) where sweeping applications of ‘discretion’ could achieve partisan victories by fiat.”

But history and recent advice from legal scholars offer solid support for an Obama executive order expanding protection for the immigrants.

When Congress wouldn’t pass the Dream Act, Obama put it into effect by using his position as head of the executive branch, with the job of executing the country’s laws. His use of executive power was supported in a letter written by professor Hiroshi Motomura of the UCLA School of Law and a number of other scholars around the country who study immigration law. Motomura said the executive branch had the authority to grant administrative relief to a “significant number of Dream Act beneficiaries, and that it has done so both historically and recently in similar situations.”

The Constitution Daily website of the National Constitution Center and the Nation magazine, trying to shed light on the current controversy, have recently researched the president’s power to issue executive orders. They stem, the Constitutional Daily site said, from Article II of the U.S. Constitution, which “vests executive powers in the President, makes him the commander in chief, and requires that the President ‘shall take Care that the Laws be faithfully executed.’ ”

President Abraham Lincoln’s Emancipation Proclamation was enacted by two executive orders. And he suspended writs of habeas corpus during the Civil War with an executive order. President Franklin D. Roosevelt used an executive order to imprison Japanese-Americans during World War II. Another Roosevelt executive order established the Works Progress Administration.

President Harry Truman’s executive order for a federal takeover of the strike-ridden steel mills during the Korean War was struck down by the Supreme Court, which said he had gone too far. But a much more famous and significant Truman executive order has held up. That was his 1948 executive order ending segregation in the armed forces.

There’s some similarity between then and now. African-Americans had fought and died in segregated units during World War II and came home to a segregated country. They became a powerful force for an end to services’ segregation, just as Latinos are on immigration today.

Republicans and Southern Democrats controlled Congress. There was no chance they would approve desegregation. Many of them despised Truman and talked about kicking him out of office.

But Truman, who saw a segregated Army firsthand during World War I, was determined to do the right thing. It also turned out to be smart politically. African-Americans were a crucial part of the coalition that gave him his famous upset victory in the 1948 presidential election.

As he begins this final crucial period of his presidency, working on an executive order that would improve the lives of millions, Obama, like Truman, has history, the law and morality on his side. We’ll see if he has Truman’s fighting heart.