Immigration Unilateralism
Caesarism to the Supremes

The Obama administration has suffered a series of stinging legal defeats over its unilateral program for granting partial amnesty to millions of illegal immigrants. Now, it looks like the this Deferred Action for Parents of Americans program is likely headed to the Supreme Court. The Washington Post reports:

The Obama administration will ask the Supreme Court to overturn a lower court injunction that has held up a new program that potentially would shield up to 5 million undocumented immigrants from deportation. The decision to take the case to the high court comes a day after a federal appeals panel ruled against the administration, keeping the new program on hold nearly a year after President Obama announced it. […]

Administration officials said they hope the court will take the case in the spring and issue a ruling by June, which, if favorable, could allow the program to begin in the summer, with just months left in Obama’s term. Republican presidential candidates have said they would dismantle the program, adding urgency to the administration’s efforts to get it started.

We aren’t legal experts at Via Meadia, but the DAPA program has always struck us as deeply problematic—not only because we thought it was likely to further poison and polarize the immigration debate, but also because it set a dangerous precedent about the boundaries of executive power. As American Interest chairman Francis Fukuyama (who knows a thing or two about the workings of the administrative state) wrote last November, the president “is not simply exercising judgment in the implementation of a law passed by Congress” by implementing DAPA. Rather, “he is in effect making law unilaterally and flying in the face of the expressed will of the people.”

There are reasons to be sympathetic to President Obama’s efforts to overhaul America’s immigration laws. The system has been broken for decades, and political elites have proven unable or unwilling to fix it. Moreover, the presence of millions of illegal immigrants in our society is a human problem that demands a humane response. But the president is not Caesar, and he cannot unilaterally change the law on major domestic policy questions without real consequences for the health of our political system. Fixing immigration law is a job for Congress—just as reining in executive overreach is a job for the courts. Even if Congress isn’t doing its job, the courts have been doing theirs.

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