Friday, November 21, 2014

Conflicted

Last night President Obama announced new changes to the United States' deportation policy:
So we’re going to offer the following deal: If you’ve been in America more than five years. If you have children who are American citizens or illegal residents. If you register, pass a criminal background check and you’re willing to pay your fair share of taxes, you’ll be able to apply to stay in this country temporarily without fear of deportation. You can come out of the shadows and get right with the law.
The political-minded portion of the world now seems divided over whether this is the best or worst news of the week. But I have to admit that I'm quite conflicted about the whole thing.

We've written about immigration a number of time, and have generally supported actions such as the President's from a policy perspective. This sort of change is long overdue, and the principles being implemented are far from foreign to our legal system. In both civil and criminal litigation, doctrines such as latches or statute of limitations require that cases are not allowed outside of a certain timeframe. Even more significant, the doctrine of adverse possession permits squatters to acquire title to property after a certain time. The bases of all these principles is that unused rights, after a certain time, can no longer be asserted. It is a principle of both justice (particularly the mercy side of justice) and efficiency: after a certain time people should feel safe from prosecution and ceaseless dredging up of all past wrongs would bogs down the legal system. That these principles do not appear in our immigration policy makes the policy a bit of an anomaly in light of the rest of our legal system. Applying these principles to our immigration system, ideally while also taking steps to streamline the legal status process (which the President's order does not do), would curtail the current process of first making lawbreakers and then punishing them.

Yet then there is the other hand. Under our constitutional model, legislative power is given to the Legislature while administrative power is given to the Executive. Here, the Legislature has acted to create the mess, and has repeatedly declined to act to fix it. The principles of rule of law and separation of powers means that there is a correct agent to make this sort of change, and it's not the President. The principle of representative democracy means that the laws reflect the will of the people, and the lack of a political will to fix the immigration system somehow means that it's what we want. In fact, for the past six years President Obama himself has repeatedly said that he does not have the legal authority to make the changes that he announced last night.

But then, Obama's announcement is less one of executive action than it is one of executive inaction. It's a statement that certain provisions of the law will not be enforced because they are deemed too harsh. It's an overreach of power that results in a less intrusive government. Examined from a rights/freedom perspective, I am hard pressed to find a credible argument that my rights are somehow harmed by my neighbor's mere existence or presence. That starting point is a slippery slope which quickly leads to all sorts of unpleasantness, not to mention that "refusing to pass" laws to "encourage" the migration of foreigners were among the complaints issued against the King in the Declaration of Independence.

And then back to the balance of power , the reason President Obama can get away with such action is because the legislature is deemed--and rightly so on this issue--inadequate. This, as with our entire administrative law mess, is less a case of power seizure by the President and more one of power abdication by the Legislature. Legislators will now exercise their vocal cords in praising or condemning the action, just as they praised or condemned the thought of the action prior to its announcement, and praised or condemned the prior legislative fixes proposed. However, far be it from them to actually hold a vote; which would interfere with their complaints that their colleagues won't hold a vote. Politically, this poses a challenge to the new Republican majority: will they step up to the challenge with prudence and competence or simply disintegrate into the same political infighting that gave the President this opportunity to act as savior?

So there it is. Approving of the President's action feels like the humane thing to do yet involves the danger of letting ends justify means. Opposing the action protects rule of law yet implicitly involves supporting legislative dysfunction. Oh for real leadership.
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