Debate over Presidential Executive Action on Immigration Obscures the Real Issues

Challenges by Congressional Republicans of the constitutionality of President Obama’s executive action on immigration has shifted the discussion about immigration reform from a policy debate to a constitutional argument that has no legal foundation.

James Wilets, J.D., M.A.

It is a rhetorical tactic by Congressional Republicans to avoid addressing an issue that is a no-win for them.  There is no legal support for the argument that the President’s actions are unconstitutional.  However, Republicans know that if they follow the opinion of a majority of Americans who support some kind of legal status for undocumented immigrants, they will inflame their right-wing base.  On the other hand, if they are perceived to be unwilling to acknowledge the issue, they will alienate the majority of Americans who want them to act, and risk deepening the Party’s existing problems with many Latino voters.

Creating rhetorical distractions and avoiding making any actual policy decisions allows Congressional Republicans to avoid touching this political hot potato.  Most Americans aren’t lawyers and if politicians keep on repeating that something is illegal, most Americans have no basis to question that assertion even when in this case, it is simply not true.

Republican leaders understand that there is no legal basis for their rhetorical attacks.  First, the President’s actions only affect those agencies under the direct control of the Executive Branch which is controlled by the President under the Constitution.  In fact, because of the legally narrow scope of the President’s Executive Order, undocumented immigrants covered under the President’s action would remain in legal limbo, not subject to deportation in the short term, but subject to deportation if a President with a different policy position comes to power.

Second, there is ample precedent for even far-reaching executive branch actions affecting agencies or policies under the Constitutional control of the President.  According to the University of California Santa Barbara Presidency Project, which catalogues Presidential Executive Orders, President Obama has signed substantially fewer executive orders than any President since Grover Cleveland, over a century ago.

Third, the President’s proposed Executive Action does not affect when, how, or if any undocumented person can become a US citizen because Congress is explicitly given the power to determine issues affecting the “naturalization” process under Article I of the Constitution.

Avoiding the real policy issues at stake here with red herrings dressed up as constitutional arguments avoids addressing the concerns that many Americans have expressed about the presence of approximately 11 million persons in the United States without a legal status.  Resolving those issues requires painstaking and politically difficult legislative work, something that the present Congress appears to be incapable of performing.

The views expressed in this guest editorial are that of  James Wilets, J.D., M.A., a professor of law at NSU’s Shepard Broad Law Center and are not necessarily those of NSU, its President or Board of Trustees.

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James Wilets, J.D., M.A.
Professor of Law, Shepard Broad Law Center
Nova Southeastern University

About the Author: James Wilets, J.D., M.A., is a professor of law at NSU’s Shepard Broad Law Center.  Wilets teaches and writes in the areas of Constitutional Law, Immigration, International Law and Human Rights.  He has served as an expert witness in more than 90 asylum cases with respect to human rights country conditions. He has extensive experience working with the media on various stories, having been interviewed for radio and television regarding immigration and international law.  He also writes extensively on international and constitutional issues. Wilets is also the chair of the Inter-American Center for Human Rights. He received his master’s degree in International Relations from Yale University in 1994, his Juris doctorate from Columbia Law School in 1987 and received his bachelor’s degree from the University of Washington in 1982.

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