It’s no secret that America’s immigration system is a confused and disorderly mess. Now the U.S. Supreme Court has a chance to inject a needed dose of clarity into the picture by upholding President Obama’s priorities on who stays and who goes.
Presidents, as well as prosecutors and law-enforcement officers, have always had the authority to exercise discretion in carrying out the law. Who gets a ticket and who gets a warning. Who gets charged with a felony and who gets charged with a misdemeanor. How far over the speed limit can you drive without getting a ticket?
This is the same sort of authority Mr. Obama relied on in November 2014 when he issued an order on deportation declaring that the government would target criminals, such as gang members, while giving a three-year reprieve to other individuals. Those excluded are people whose children are U.S. citizens or lawful permanent residents, who have been here at least since 2010 and who do not have criminal records.
The reasons for Mr. Obama’s order are the same ones that compel police and prosecutors to exercise discretion: limited resources and practicality. It is simply not possible to deport the 11 million individuals who are here without the proper documentation, and it’s silly to pretend otherwise.
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The humanitarian impulse was to avoid breaking up families and to allow as many as 5 million people to live here without fear of sudden expulsion. It is also useful to bring all these people out of the shadows so that they need no longer fear talking with their neighborhood police or other law-enforcement figures.
Some might say that there’s a big difference between a cop who doesn’t issue a speeding ticket to someone going, say, five miles over the speed limit, and a president who gives temporary blanket amnesty to millions of people. Obviously, the scope of the president’s order is broader, but there’s nothing new about presidents acting unilaterally on immigration when conditions make it imperative.
President Reagan in 1987 excluded from deportation the minor children of immigrants who had already been granted amnesty the year before. Three years later, the first President Bush allowed more than 1 million to stay as part of a “family fairness” process. Neither one consulted Congress.
What’s different this time are the large number of immigrants in our cities who have no legal status, the dysfunction in the immigration system and the relentless pressure on the southern border. It has created a perfect political storm that gives rise to a kind of hysteria over immigration. But none of the above should give rise to changes in the law or a ruling that does not follow established precedent upholding presidential authority over immigration.
The current lawsuit before the Supreme Court was brought by states claiming harm to themselves because immigrants impose administrative costs, a flimsy argument that the court should disregard given a judicial history of affirming that immigration is the exclusive purview of the federal government — even though lower courts have upheld the states’ argument.
However, the court has consistently upheld presidential authority in realm of immigration. As late as 2012, the court ruled against an Arizona law that allowed the state to detain individuals who were in the country illegally. Essentially, the court said, that’s the president’s job. That was true then, and it should still be true today.