BY ESTHER J. CEPEDA, Washington Post Writers Group
CHICAGO -- President Obama’s expansion of executive action for illegal immigrants was kept on hold last week when the 5th U.S. Circuit Court of Appeals denied the government’s request to allow the deferral initiatives to take effect. The debate surrounding the case has been cast as a clash between a president’s will and his administration’s limits as described in the Constitution. But the court’s opinion sheds light on the real issue: staying power.
The argument isn’t all about whether the president has the authority to put such a widespread program into place -- and most legal scholars agree that previous immigration moves by other presidents set worthy-enough precedent. It’s ultimately about whether the decision to give as many as half of all unauthorized residents permission to breathe more easily and continue building lives in the U.S. is the best way to solve our broken immigration system.
Judge Jerry E. Smith outlined the 2-to-1 decision succinctly. Referring to the Deferred Action for Parental Accountability (DAPA), which was an expansion of the Deferred Action for Childhood Arrivals (DACA) that the president launched in June 2012, Smith wrote:
“Some features of DAPA are similar to prosecutorial discretion: DAPA amounts to the [secretary of homeland security’s] decision -- at least temporarily -- not to enforce the immigration laws as to a class of what he deems to be low-priority aliens. If that were all DAPA involved, we would have a different case. DAPA’s version of deferred action, however, is more than nonenforcement: It is the affirmative act of conferring ‘lawful presence’ on a class of unlawfully present aliens. Though revocable, that new designation triggers eligibility for federal and state benefits that would not otherwise be available.”
In an effort to fend off criticisms that the president issued an executive “amnesty,” immigrant advocacy organizations are bending over backward to underscore that “lawful presence” is not the same as “legal status.”
Still, they are hoping that this distinction without a difference (to those whose immediate aim is to be shielded from deportation) will act as toothpaste that, once out of the tube, cannot be stuffed back in.
The Migration Policy Institute estimates the number of illegal immigrants who are potentially eligible for either DACA or DAPA at approximately 5.2 million.
The full intent of the backers of executive action is that once unlawfully present people “come out of the shadows” and are granted, if not a legal status, then at least the ability to get a driver’s license, a job and, potentially, access to government benefits, it will be politically impossible to revoke these privileges.
The question, then, of whether legislators get to craft an orderly -- and fair, to those legal immigrants who are maneuvering working their way through the arduous and backlogged U.S. Citizenship and Immigration Services system -- method of dealing with an estimated 11.4 million unauthorized immigrants effectively goes out the window.
Once a critical mass of this population has been brought into the system, it will seem unimaginable and impractical to go back on the promises made to all those who gathered up their documents, registered with the feds and followed instructions to the letter in order to be able to stay without fear of being deported.
Speaking at a news conference, Marielena Hincapie, executive director of the National Immigration Law Center, cast this brawl as an “anti-immigrant attack designed to sow confusion and fear in immigrant communities across the country.”
Confusion and fear are probably an inevitable result. But it would be wrong to assume that the only people with reservations about opening such a precedent-setting floodgate are those whose only preferred resolution to the immigration crisis is of the “send-’em-all-back” variety.
Besides, conservatives aren’t the only ones sowing fear. This battle is being cast in terms of “being on the right side of history,” dire consequences and voting-booth retribution. Debbie Smith, associate general counsel of the Service Employees International Union, made sure to note that “as we look to 2016, those contenders who continue to block or flip-flop on immigration reform -- the immigrant vote will not forget who voted against them.”
Makes you wonder whether voters who want legislators to cobble together a bipartisan and comprehensive reform measure will, at the ballot box, outnumber those who prefer the president to unilaterally set the course for years to come.
Esther J. Cepeda is a Nationally Syndicated Columnist with the Washington Post Writers Group.
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