In the midst of accusations that he is exceeding his presidential authority, US President Barack Obama has announced that he will take executive action on immigration.
Although opponents of this measure have argued that he is shutting down the government, superseding the powers of his office and doing so in an unprecedented way, I would like to suggest that what he is doing is actually much more of a compromise than a radical move. Second, against charges that he is granting amnesty to a “bunch of illegals,” I would suggest that the black and white portrait of legality and illegality is much greyer than even progressive voices are indicating.
Since the American Civil War and President Abraham Lincoln, executive authority has been used to transform the power of the presidential office. Lincoln and Franklin Delano Roosevelt are considered the two presidents who wielded this power the most, when executive authority is broadly defined.
Only with the end of Nixon’s administration was this power reined in a bit. But President Bill Clinton subsequently expanded it. President George W. Bush used it to assert more executive authority than nearly any other president.
Obama’s use of this authority is therefore hardly unprecedented and his record is much more moderate than that of recent presidents.
Furthermore, he is not the first president to use this power in matters of immigration. The Supreme Court has ruled that in matters of immigration, the executive and Congress have sole authority—this is called the plenary power doctrine. It has Republican predecents. Presidents Dwight D. Eisenhower, Ronald Reagan and George H. W. Bush all signed executive orders to regularise the status of illegal immigrants. This doctrine has grown in strength in recent years.
But a third point should be made: the powers that now govern most immigration enforcement are largely extra-judicial in many respects and discretionary. In that context, all Obama is doing is taking what is already discretionary and reconfiguring these powers in a more democratic and humane direction rather than using them to detain and deport resident foreigners.
His announcement is actually a compromise. He is not providing any method of naturalization for America’s 11 million undocumented residents, less than half of whom will be eligible for the legalization he is proposing.
He is simply buying time for part of the undocumented population, allowing them to legalize their status for a certain time.
In this way, what will probably occur — as happened in 1986 when Congress passed an amnesty law which affected three million “illegals” — is that families and communities will continue to live with mixed status and generally, in fear. Although one person will be eligible for relief, her father, mother, brother or sister may not be. It is not a fix because the mass detention and deportation system created in 1996 will still be in place.
The workings of this system are not often exposed in the media but they explain the fear and intimidation that prevent people from seeking legal status. Many are even reluctant to ask for police help if they have been victims of crimes. Detention can mean the loss of a breadwinner and the break-up of a family.
The detention and deportation system also throws an individual into legal limbo. Constitutional rights are not applicable and theoretically, anything could happen to them in detention.
After being deported, she may return to a country where she will have no family support or where she will experience social stigma and political persecution. Even those who are eligible for legal status and citizenship are often afraid to step forward.
While immigration conservatives are blaming Obama for making these very minimal moves, he is also hearing from undocumented youths who were brought across the border by their parents; he is being pressured by workers who know they are contributing to the economy and feel that they are part of this country; and he knows that so-called “illegals” are often the victims of crime, labor abuses, and other predatory behavior.
His temporary, limited measure may survive the inevitable backlash. But it will not solve the problem. At best it will only buy time. As a country, we must do much more. We need to become more educated about immigration issues and move beyond the legal-illegal binary that currently dominates.
Obama’s use of executive authority will not be remembered by history along with Lincoln’s Emancipation Proclamation or Roosevelt’s strengthening of workers’ rights through the New Deal. But neither will it become as infamous as orders by other presidents to intern Japanese-Americans, create the abuse-ridden Bracero Program, or to suspend civil liberties in the name of a War on Terror. Obama’s plan steers a middle course, aiding the causes of democracy and human rights, even if it does not entirely fulfil their promise.
Kathleen Arnold is a visiting professor of political science in the College of Liberal Arts and Social Sciences at DePaul University, in Chicago.