Constitutional Conflicts, Immigration

The edifice of government won’t collapse

The day after the midterm elections, Sen. Ted Cruz sent a letter to Harry Reid, the Senate majority leader.

Oddly, the subject matter wasn’t the resounding Republican victory, but an impending “constitutional crisis”: President Obama’s plan to use executive action on immigration. Cruz urged Reid to use the lame-duck session to “restore the separation of powers.”

Lofty language, but America is not on the brink of a constitutional crisis.

Perhaps the closest the country ever came to one was in 1937, when Franklin D. Roosevelt, unhappy with the Supreme Court’s animosity towards New Deal policies, pushed for legislation aimed at filling the court with justices friendly to his economic ideals.

Had Roosevelt’s “court-packing” plan worked, it would’ve been a true constitutional crisis: A president wielding his power to convince Congress to change the makeup of an independent judiciary, for the sole purpose of rubberstamping legislation he liked.

In other words, getting all ducks in a row. Separation of powers would have been a joke.

But the crisis never materialized. The Supreme Court itself managed to avert it with its decision in West Coast Hotel Co. v. Parrish, which effectively upheld something Roosevelt had long sought: legislation advancing his vision of economic progress. In this case, it was Washington state’s minimum-wage law. The bill to pack the court died a natural death shortly after.

None of this should be news to Cruz—a Harvard Law graduate and himself former law clerk to a Supreme Court chief justice. Which makes it all the more curious that he’d call Obama’s imminent action on immigration a “constitutional crisis.”

It is nowhere near that.

For one, because executive action on immigration has nothing to do with the separation of powers. Obama is not making new law: he’s not promising green cards or otherwise offering federal benefits to undocumented immigrants. He’s merely expected to exercise his broad discretion to suspend deportations for the sake of keeping families together and giving peace of mind to people who pose no threat to public safety.

All of this is perfectly within the president’s powers. Family unity, it turns out, has been a cornerstone of executive action before, and no constitutional crises ever came of it.

In 1986, President Ronald Reagan signed into law the Immigration Reform and Control Act (IRCA), which provided a path to legalization for up to 3 million undocumented immigrants who had resided “continuously” in the country for a fixed period. The law, however, left out of the picture spouses and children who did not meet the law’s criteria.

There was huge political fallout from the exclusion—it threatened to disrupt families, which cut to the heart of Reagan’s stance on family values and unity. Congress tried to fix the problem, to no avail.

So the executive responded. Alan Nelson, Reagan’s immigration commissioner at the time, announced he would exercise the attorney general’s discretion to make sure children of parents who benefitted from IRCA were granted a deferral of deportation—the functional equivalent of Obama’s Deferred Action for Childhood Arrivals program from June 2012.

But the executive fix didn’t go far enough because it still left spouses and some children with one legalized and one undocumented parent unprotected from deportation. In July 1989, the Senate attempted to help these two groups by expanding IRCA to include them, but the House did not act.

Enter George H.W. Bush.

In what became known as the “Family Fairness” program, Bush boldly took up the failed Senate bill and implemented its main provisions via executive action. Gene McNary, the new immigration commissioner, predicted that up to 1.5 million family members would be spared from deportation under the new policy.

None of this, of course, caused a constitutional crisis.

If anything, executive action prompted Congress to step up to the plate and pass legislation that would provide even more help for families. It took Bush Sr. “going big” on immigration for the House to follow suit, leading to the passage of the Immigration Act of 1990. When Bush signed the law, he recognized its impetus was “family as the essential unity of society” and the country’s “historic commitment to family reunification.”

Families won the day. And like Reagan and Bush before him, there is a strong incentive for Obama to act on behalf of families when he moves unilaterally on immigration.

If the edifice of government didn’t collapse with prior executive action, it won’t collapse now.


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