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Alberto Gonzales and David Strange: Executive amnesty is shortsighted



Think about precedent when the GOP sits in the White House. President Obama is reportedly poised to take executive action on immigration through a multipoint plan that could provide temporary immigration relief for a few million people. Some Republican members of Congress are asserting that the president lacks the authority to take broad-scale unilateral action.

Without further details of the plan, we believe the answer is far from clear.

Presidential duty

On the one hand, Article II, Section 3 of the Constitution imposes a duty on the president to take care that the laws be faithfully executed. While the president may choose to not enforce a law he determines is unconstitutional, he has no authority to suspend, amend or repeal a valid law, or to refuse to enforce a law on the sole basis that he disagrees with it as a matter of policy.

On the other hand, the courts and Congress have recognized that the president has discretion in enforcing the law on the basis of budget constraints and policy priorities not otherwise inconsistent with congressional intent. Thus, while the president has the discretion to decide how to enforce the law, he does not have the discretion to decide whether to enforce the law.

Some Republican members of Congress are reportedly considering litigation. For that effort to be successful, however, members will have to show that the president has abused his discretion and that they have standing to assert their claim in court. These are substantial hurdles.

Though the president's legal authority is an important consideration in the discussion over immigration reform, we believe taking executive action now is ill advised as a policy matter and shortsighted for at least three reasons.

The sort of executive action on immigration that has been reported will not yield a long-term permanent solution. Executive action can only provide temporary help to a designated group of people. Comprehensive reform by Congress, on the other hand, can potentially reach far more people and provide long-term, permanent relief — relief not just for individuals but for our nation's economic and national security interests as well.

Ironically, executive action might provide short-term comfort, but it could also make it more difficult to achieve that which pro-immigrant advocates desire most — a permanent comprehensive solution that provides certainty and reunites families.

Compassion backfire

Moreover, many believe that the rush of young people across our border this year from Central America was spurred by the president's deferred actio n program. New executive action could encourage more unlawful migration and place additional strain on the U.S. Immigration and Customs Enforcement agency and the immigration courts. Morale within ICE and the Border Patrol is reportedly at an all-time low. The career men and women who have dedicated their lives to upholding the rule of law are frustrated over not being allowed to do their job. Most are unlikely to be placated by a promised pay raise.

Finally, we should understand that there is far more at stake here than immigration policy. This is a dispute over the institutional prerogatives of our elected branches of government, and the outcome could have far reaching implications in future dialogue between the branches. Which branch gets to decide our immigration policy is a question that should be of interest to all members of Congress — and certainly for those who care about separation of powers.

One day, the country will have a Republican president, and Democratic members who support this president taking executive action could feel differently when it is a Republican wielding the executive pen.

The 2014 midterm elections revealed deep dissatisfaction with our federal government. The president should take this opportunity to reconnect with the American people and with the Congress.

If he explains why congressional action is the better course, then the burden shifts to the Congress, and members will have to answer for their failure to act.

Rather than complaining about executive branch abuses and threatening to shut down the federal government and impeach the president, members should go to work and pass comprehensive immigration legislation. That is their job.

Alberto R. Gonzales is a former U.S. attorney general, and David N. Strange is an immigration attorney. They are the authors of the recently released A Conservative and Compassionate Approach to Immigration Reform.


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Posted: November 18, 2014 Tuesday 07:33 PM