The policy change, announced Friday by Homeland Security Secretary Janet Napolitano, will affect as many as 800,000 immigrants [though it could be far more---FB] who have lived in fear of deportation. It also bypasses Congress and partially achieves the goals of the so-called DREAM Act, a long-sought but never enacted plan to establish a path toward citizenship for young people who came to the United States illegally but who have attended college or served in the military....Under the administration plan, illegal immigrants will be immune from deportation if they were brought to the United States before they turned 16 and are younger than 30, have been in the country for at least five continuous years, have no criminal history, graduated from a U.S. high school or earned a GED, or served in the military. They also can apply for a work permit that will be good for two years with no limits on how many times it can be renewed.The policy will not lead toward citizenship but will remove the threat of deportation and grant the ability to work legally, leaving eligible immigrants able to remain in the United States for extended periods.
A key point raised by Daniel Horowitz: no law by Congress has been passed enabling this immunity from deportation or the granting of work permits. Whether one agrees with the result of a selective amnesty that creates a class of permanent non-citizen workers or not (especially in a time of high unemployment), we should pay attention to the implications of process here.
If the president can claim the ability not only to selectively halt the prosecution of various laws but also to create new legislative mechanisms for work permits for immigrants, what limits are there to the president's power? Could the president just choose to stop enforcing civil rights laws and create new standards for voting instead? Could the president choose to avoid collecting taxes at the legally specified rate and instead create new tax rates? Could the president set separate new rates for Republicans or Democrats or women or men? (After all, the administration's new immigration rule treats one age group differently from another.)
President Obama's move could have radical implications for executive power. It could also have implications for the pending Supreme Court case about Arizona's recent immigration law. The federal government's brief there suggests that the executive branch has a broad latitude in deciding what laws to enforce and how to enforce them. In this move, the Obama administration has taken that principle to a new level, not only choosing not to enforce certain laws but also creating new measures. If the Supreme Court endorses the administration's position for Arizona outright, some on the court may feel that they are giving the administration a green light to extend its executive reach even further.