Immigration Ruling Part 5: Deferred Action in Congress

by Michael Dorf

My new Verdict column could be considered the fourth installment in a series on the ruling by Judge Hanen enjoining the Obama policy of expanded deferred action for undocumented immigrants. In Part 1, I criticized Judge Hanen's over-the-top rhetoric and questioned his bottom line about the reviewability of the agency action at issue, but, noting how unreviewable presidential power not to enforce the law should trouble progressives even more than it troubles conservatives, I concluded that the opinion had a silver lining. In Part 2, Professor Buchanan explained how that silver lining might be deployed if and when the debt ceiling shenanigans return next fall. Part 3 was a magnum opus by Professor Kalhan, which revealed how Judge Hanen either misrepresented or misunderstood immigration law and that therefore, contrary to the ostensibly limited ruling, the opinion was anything but "narrowly crafted."

The Verdict column is Part 4. It offers general readers an explanation of the administrative law issues; notes that the government is now pursuing both an emergency stay from Judge Hanen and an appeal to the Fifth Circuit; and evaluates additional options. The government could proceed with a notice-and-comment rulemaking. It could withdraw the executive order but pursue the same policy anyway (given what Judge Hanen says about formalization and discretion). Or President Obama could fold and go back to Congress for comprehensive immigration reform.

That last option is, of course, not serious. The Republican Congress is not going to pass comprehensive immigration reform on President Obama's watch. On the contrary, Congress is deadlocked over whether to fund the Dep't of Homeland Security past Friday, when its current funding runs out. The House passed a funding bill that includes an override of the President's deferred action program. Senate Democrats want a "clean bill." Yesterday Senate majority leader Mitch McConnell offered a clean bill if there were also a debate on a clean bill to invalidate the deferred action program. However, Democrats were balky, saying that they want some assurance that the House would also pass a clean bill. The smart money for now appears to be betting on a clean stopgap measure funding DHS for a few months or maybe only weeks, at which point the whole farce plays out again.

Judge Hanen's ruling does not appear to have affected the politics. One might have thought that House Republicans would soften in their insistence on tying DHS funding to overriding the deferred action program because they have gotten what they want by judicial means: the deferred action program is not going into effect. One might also have thought that Senate Democrats would soften in their opposition to a DHS bill that overrides deferred action for the same reason. But it hasn't worked out that way for what I suspect are two reasons.

First, there remains the possibility that the Obama Administration will win on appeal. Given this possibility, it would be premature for Republicans to think they don't need a congressional override and it would be likewise premature for Democrats to throw in the towel.

Second, it looks as though this is a fight that both sides want to have. In general, immigration is a tough issue for Republicans. House members in safe seats with large white majorities can afford to be--and many are--very tough on immigration. That stance harms the Republican Party elsewhere and nationally but on this issue, as on others, the party leadership has great difficulty getting individual House members (and many Senators) to place the national party's interest over the individual members' electoral interests. Even members of Congress who might otherwise be inclined to moderation are sufficiently fearful of a primary challenge from the extreme right to lean far right on immigration (and various other issues).

But while the Republican national leaders generally would prefer to avoid calling attention to their members' positions on immigration, they appear eager to have this particular fight because they think they can make it about executive overreach, rather than about immigration.

This strikes me as a tactical mistake. As I noted in Part 1 and elsewhere, the Republicans may have base motives but they are not wrong that the mere invocation of "prosecutorial discretion" should not be sufficient to shield presidential non-enforcement of the law. But that is an argument that strikes me as far too sophisticated for typical voters. Yes, Republicans and their allies can also use the claim that "President Obama thinks he's a king" to mobilize their base, but he won't be on the ballot again and the sort of people who are mobilized by this kind of claim are easily mobilized by lots of other messages too. A typical voter will see this fight as over immigration--the Democrats' turf.

If I'm right--and I really have no expertise in political analysis, so I could well be wrong--the Republicans will fold here before the Democrats do. At that point, perhaps I'll write Part 6.