At the heart of the Executive Order on illegal immigration (Deferred Action for Parents of Americans and Lawful Permanent Residents program – DAPA) issued by President Obama in November 2014 is the balance of power between the branches of Government. Unilateral action by President Obama has placed the President in exactly the overreach he stated February 2013 prevented him from acting, “I’m not the emperor of the United States.”
But this unilateral power grab, currently being challenged by 26 States in courts, has been blocked by Appeals Court rulings of which the most recent was November 9, 2010 in Texas. This leaves the Obama Administration in the political quagmire of either doing nothing or attempting to go to the Supreme Court. Either action will have political ramifications.
Immigration reform has been a hot button topic in politics for decades. The promise to enact reform was one of the major campaign trail promises in 2008. When Democrats gained a supermajority in 2009, enabling them to enact any legislation regardless of opposition from Republicans or opponents of a path to citizenship for illegal aliens, Democrats snubbed supporters and shelved any immigration action until 2012. In 2014, President Obama promised to take unilateral action in the State of the Union Address, bypassing Congress. The result of these actions has led newly-elected House Speaker Paul Ryan to state on the CBS program Face the Nation,
“I think it would be a ridiculous notion to try and work on an issue like this with a president we simply cannot trust on this issue… He tried to go it alone, circumventing the legislative process with his executive orders, so that is not in the cards.”
DAPA is essentially an expansion of the 2012 Executive Order (Deferred Action for Childhood Arrivals – DACA) to allow some 1.2 million illegal aliens to remain in the U.S. without fear of deportation. Initially DACA was restricted to those under 31, that illegally entered the U.S. as minors under the age of 16, without significant additional criminal charges. These restrictions were later altered by President Obama to expand the class of people covered. Some 600,000 applications have been received to date. DAPA would expand this coverage, and confer lawful presence, to the illegal immigrant parents of those covered by DACA, approximately 4.3 million illegal aliens.
The reaction to DAPA was swift. 26 States sued to prevent enacting DAPA. The reason was that President Obama had overstepped his authority, bypassing Congress and creating law. The Republican National Committee commented at the time,
“When did we add a ‘politically convenient clause’ to the Constitution in the last four years?”
By February 2015, 3 months after the DAPA was issued by President Obama, Judge Andrew S. Hanen, of Federal District Court for the Southern District of Texas issued a stay halting implementation. It was followed by United States Court of Appeals for the Fifth Circuit, in New Orleans, decision to uphold the February injunction.
As predicted by President Obama on Telemundo in September 2013, DAPA is proving to be difficult to defend. Many scholars feel that ultimately it will fail in the appeal courts. Which leaves the Obama Administration in a difficult position.
Thus the Obama Administration is facing a substantive challenge to the third signature piece of legislation for its legacy. If nothing is done, then the Democrats will be hit with a backlash from supporters of amnesty and a path to citizenship for illegal aliens. It would also mean that one of the legacy accomplishments of the Obama Administration would be summarily struck from the history books, or recorded as a failure on President Obama tenure. The other option, to pursue a decision from the Supreme Court, would thrust even more emphasis on illegal immigration reform in the 2016 presidential election – likely just as both Parties announce their candidate nomination.
In a January 2015 poll by the Associated Press, 56% of those polled opposed the manner in which DAPA was being implemented. In a poll by Gallup that same month, 60% of those polled stated they were dissatisfied with the level of immigration in the nation and only 7% believe that immigration levels should increase. This seems to indicate that not only would a pursuit of the immigration Executive Order be an uphill battle in the courts, but an added burden potentially to the Democrat nominee.
In the past, President Obama has moved forward with his efforts to secure his legacy. In passing the Affordable Care Act (ACA or Obamacare), President Obama used all his initial political capital to pass the law without Republican support or input, and has faced multiple court battles including 2 Supreme Court rulings. Obamacare remains unpopular with the public in polls since 2010.
President Obama has also pressed forward with gun restriction legislation via Executive Orders. These 23 Executive Orders have had no demonstrative impact on preventing mass shootings. Vice President Joe Biden admitted in 2013 that no impact should be expected
“Nothing we’re going to do is going to fundamentally alter or eliminate the possibility of another mass shooting…”
Given this history of guarding signature legislation and Executive Orders, even in the face of persistent public disapproval and at the cost of even the attempt to engender bipartisanship in Congress, it is likely that the Obama Administration will pursue a Supreme Court decision. While this may help drive Latino voters to the Democrat nominee, it will also likely make the unilateral process and growth in Executive Branch power an issue the Democrat nominee will have to defend. Even worse, it could result in a Supreme Court decision opposing the Obama Administration view, just as the 2016 election takes place. That may cost general population votes, and the election.
Thus the question remains, is the legacy of the Obama Administration potentially worth the 2016 presidency?