Reform of our immigration system, long described as "broken" by Democrats and Republicans alike, has been on the docket forever. Campaigning to get to the White House, candidate Barack Obama not only promised but guaranteed immigration reform in his first year in office.
That guarantee has not been delivered on, not in President Obama's first term, even with a Democratic-controlled Congress, because of the President's need to rescue an economy on the abyss. Nor has an all-out effort been mounted since, for various reasons, including Mr. Obama's all-out effort to reform the healthcare system. Now, with a Republican-controlled House, immigration reform is "off the table." Why? As Speaker John Boehner insultingly put it, "There's widespread doubt about whether this administration can be trusted to enforce our laws."
With Mr. Obama's tenure running out, time is running out on his guarantee.
Mr. Obama made a stab at reform, in 2012, through executive action, with DACA---Deferred Action on Childhood Arrivals, the so-called "Dreamers." Implemented by the Department of Homeland Security, DACA enables "prosecutorial discretion" in deferring the deportation of children of undocumented immigrants brought here as infants, provided these Dreamers can show they are in school or have graduated, or are in the armed services, and they have no criminal record.
While DACA does not confer legal status and must be renewed every two years, it does confer employment authorization. In this, the Dreamers have embraced DACA whole-heartedly, making major progress in securing work, earning raises -- and paying taxes -- and getting driver's licenses; in other words, acting like good citizens.
But Republican members of the House, acting out of new depths of obstructiveness, voted to rescind DACA on their way out of Washington for this August's recess. This action, while having no chance of passing the Senate, must have been the last straw for Mr. Obama and the go-ahead for executive action. "Calling the House measure 'extreme and unworkable,'" writes The Washington Post, "Obama signaled in a news conference that he believes Congress has opened the door for him to act." Various immigration rights groups have been called to the White House for consultation.
The question now, as formulated in the media, is: Should Mr. Obama, working via executive action, "go big" or go incrementally on immigration reform? And should he go now, before the November midterms, or go after? (See here, here, here, here, and here.)
Much as it would be great to advise going big, given the present context of extreme polarization -- and, crucially, given the reality that Congress, its extreme dysfunction notwithstanding, has the final word on all matters relating to immigration and naturalization -- Mr. Obama should go incrementally, properly leaving the (big) task of comprehensive immigration reform to the next Congress. And he should go now, before November, to signal to a more-than-patient immigrant community his intent finally to deliver on his guarantee.
At the same time Mr. Obama should also announce that, after the coming midterms and before he leaves office, he will mount an all-out effort in concert with Congress to achieve the comprehensive reform our broken immigration system so sorely requires.
As it happens, immigration reform has already become a major election issue: With the crisis of migrant children from Central America amassing at our southern border to escape their countries' poverty and killing (also here and here), immigration reform has shot up to the number two position, after the economy, as an issue important to the public.
As for specific incremental action: While continuing to beef up border security and deport the undocumented having criminal records, Mr. Obama might extend DACA, or deferred deportation, to the Dreamers' parents and families. This is the logical next step in a very successful program. Importantly, extending DACA in this way enhances family cohesion, while also stabilizing the local community and economy. And it would reduce the record number of deportations set by this administration of immigrants who are law-abiding but lack the proper documentation.
Of course, Republicans will cry "amnesty" and accuse Mr. Obama of illegally creating a "path to citizenship" for the undocumented. But it bears repeating, over and over: DACA does not confer legal status, only temporary deferment from deportation. The undocumented remain essentially undocumented, illegal.
It also bears repeating: Only Congress can confer that path to citizenship and all the rights pertaining thereto -- including the right to vote. Contrary to Republican cries of Democratic vote-mongering, the undocumented cannot vote, not until they have been naturalized. The President as constitutional law professor can make these points in putting forth his proposal. But perhaps his most forceful argument is an appeal to the Republicans' emphasis on the family: Extending DACA would keep families together, not tear them apart.
Even so, Republicans will claim that, given the numbers involved -- 4 to 5 million -- extending DACA to family members is hardly incremental but is actually "going big." But extending temporary deportation, by two-year increments, is by definition incremental; extending deferment permanently would be going big. Incremental or big, earned citizenship or amnesty: It's all about framing the question, something Republicans are far better at than Democrats.
Republican accusations of Democratic vote-mongering also don't hold for those states that are key to control of the U.S. Senate, since the numbers of voting Hispanic citizens in those states -- Alaska, Arkansas, Louisiana, Montana, North Carolina, South Dakota, West Virginia -- are not substantial.
One big political advantage to Mr. Obama's going before November with immigration reform, in addition to giving heart to advocacy groups, is this: It may spur an indolent Democratic base to mobilize on an issue supposedly important to them and actually get out their vote to keep the Senate in Democrat hands. Because really, fellow Democrats, are we to believe a Republican-controlled Congress would put back on the table an issue they've regularly taken off it for the flimsiest of excuses, e.g., House majority leader Eric Cantor's defeat by an opponent who accused him of being pro-amnesty for illegals? For sure, the Republican base, energized by such amnesty threats, will be out at the polls in force.
In other incremental action: The White House is also meeting with big business, to get them on board for "a range of fixes" to immigration policy -- from tweaking work authorizations to enabling high-skilled foreigners to stay here -- the idea being these presumably Republican businesspeople could push back against Republican critics.
Whatever the President proposes -- the White House has announced we can expect Mr. Obama's proposal on immigration reform by the end of the summer -- expect the Republicans to go big on virulent attacks (though some Republicans are trying to get to "yes," reportedly, on immigration reform and other issues).
Already, conservative commentators have accused Mr. Obama of Caesarism (creating his own laws) and have threatened that if this Caesar crosses the Rubicon -- makes a move, incremental or big, on immigration reform before the election -- such move would be "impeachment bait." All this before Mr. Obama has even indicated how he will go, much less issued his proposal.
But then these commentators are not being honest about how Republican obstructionism, in play since Mr. Obama's first inauguration, has forced him to take executive action to get anything done. Nor do they note the contradiction of Speaker Boehner's parting shot before taking August break, that Mr. Obama has sufficient executive authority to deal with the child migrant crisis at the border -- the very authority Mr. Boehner cites him for in his lawsuit against the President.
As is so often the case, it is Abraham Lincoln who provides instructive precedent, in his handling of the Emancipation Proclamation freeing the slaves. As described by Charles Lane of The Washington Post, Lincoln like Mr. Obama faced losses in the 1862 midterms. With the Civil War underway, Lincoln turned creative and invoked his power as commander in chief: Freeing the slaves, he reasoned, would both deprive the South of forced labor and increase the Union's fighting ranks, thus helping to win the war. Lincoln called the proclamation "an act of justice warranted by the Constitution upon military necessity" [my italics]. In proposing to abolish slavery, he had the moral point too. Lincoln prevailed in the midterm election, won the Presidential election and the war, then in 1865 mounted an all-out effort to secure the proclamation in law, with the Thirteenth Amendment.
In an act of justice warranted by the Constitution upon moral necessity, Mr. Obama can likewise be a liberator in immigration reform. In so doing, he may also liberate this immigrant nation. Go to it, Mr. President.
Major immigration rights organizations include: America's Voice; National Council of La Raza; National Immigration Forum; National Immigration Law Center; United We Dream; Dream Action Coalition. For anti-immigration organizations, see here for a listing compiled by Southern Poverty Law Center. For the White House's immigration page, see here. For a proposal by former Governor of Washington state, Republican Daniel J. Evans, see here.
--
Carla Seaquist's forthcoming book of commentary, "Can America Save Itself from Decline?: Politics, Culture, Morality," is due out soon. Her earlier book, "Manufacturing Hope: Post-9/11 Notes on Politics, Culture, Torture, and the American Character," came out in 2009. Also a playwright, she published "Two Plays of Life and Death," which include "Who Cares?: The Washington-Sarajevo Talks" and "Kate and Kafka," and is working on a play titled "Prodigal."