Obama's Immigration Executive Order

Tonight the President let the cat out of the bag, or at least he let five million illegal immigrants out of it. Here are the generalities of what Mr. Obama is proposing...courtesy of the Hill.

The president will also announce plans to shift enforcement efforts, ordering federal law enforcement officers to narrow their focus to those illegal immigrants with criminal records, gang affiliations or ties to terrorism. 

[...] 

The biggest change to the immigration system will be a new program that allows the parents of U.S. citizens and permanent residents to apply for work permits and deferred deportation. 

An estimated 4 million parents will be eligible for the initiative. They are people who have been in the United States for at least five years and have no felony convictions but are currently in the country illegally. 

The program is modeled on a similar initiative — known as the Deferred Action for Childhood Arrivals program, or DACA — that Obama launched in 2012 for immigrants brought to the United States illegally as children. 

The administration is also expanding eligibility for the current deferred action program. Previously, those brought to the United States as children needed to have come to the United States before 2007, and to still be under 31 years of age, to apply for the new status. Now, any qualifying immigrant brought to the United States before 2010 as a child is eligible, opening the program up for at least a quarter-million more people. 

Those receiving deferred status will also now be protected for three years — not two, as was originally the case under the program. Administration officials say they expect the program to be fully implemented by spring. 

Separately, the Department of Homeland Security will overhaul its handling of immigration enforcement, focusing efforts on “deporting felons, not families,” according to one official...

This new "executive action" was wryly constructed with, and by my best assessment, the intent to sequester any potential GOP attempt to suppress or desist this activity. Conversely though Republican oppositionists will undoubtedly create tenable opposition either through legal or parliamentary tactics as soon as their creative juices start to flow. Of course conservative opposition to this is expected however, the question still remains is Obama acting within the bounds of his prosecutorial discretion--the rationale behind this action. And even if it's deemed Constitutional is this case of "just because you can you should?" David Bernstein, at the Volokh Conspiracy comments on this and the longer termed ramifications for the Executive branch.

What’s needed, and what has been largely missing in this administration, is a president with the humility to recognize that his own immediate political interests and policy goals, his own pursuit and exercise of power, are and must be subordinate to the greater long-term public interest in the Constitution and the rule of law. Just because a president can do something, doesn't mean he should. And if doing something means establishing a precedent that it’s okay for presidents to look through the U.S. code for loopholes that allow him to circumvent the normal legislative process and enact important policies not only without Congressional input, but in the face of affirmative Congressional opposition, when there is no exigency requiring immediate action, then he definitely should not.

On the question of the constitutionality of the President's executive action, Prof. Steven Schwinn of the Constitutional Law Prof Blog offered up a plausible deficiency which might sway in favor of the GOP.

Finally, as to the third, OLC said that the President lacks authority to implement deferred action for DACA parents. OLC said that the considerations here are similar to considerations for deferred action for parents of U.S. citizens, but are different in two key respects. First, while immigration law expresses concern about keeping families together, it expresses this concern in the context of citizens and lawful residents, not DACA'd individuals (who "unquestionably lack lawful status in the United States"). Next, deferred action for DACA parents "would represent a significant departure from deferred action programs that Congress has implicitly approved in the past.

Needless to say where this goes from here is assured to be interesting.