The president once said: “I’d rather see permanent fixes to the issue we face. Certainly, that’s true on immigration … I would love nothing more than for bipartisan legislation to pass the House and the Senate and land on my desk, so I can sign it. I take executive action only when we have a serious problem, a serious issue, and Congress chooses to do nothing. … America cannot wait forever for them to act. That’s why today, I’m beginning a new effort to fix as much of our immigration system as I can, on my own, without Congress.”
No, that is not what President Trump said at his press conference Friday. It’s what President Barack Obama said on June 30, 2014, when he announced that he would be unlawfully granting temporary legal status and even work permits to as many as 11 million illegal immigrants. Congress had specifically declined to grant them this status. But Obama decided that because Congress would not act to change its mind, he was justified in doing what they would not do.
The problem with Obama’s action was that there exists no constitutional loophole for presidents to do as they please in cases where Congress won’t act. Presidents are not given special powers in cases where Congress is supposedly gridlocked — “gridlock” being the term that presidents use when Congress refuses to do what they want.
Now, when you compare Obama’s fallacious self-justification with Trump’s justification for this week’s emergency declaration allowing him to reappropriate funds for a border wall, the two are almost indistinguishable.
Yes, Democrats in Congress don’t take border security seriously. Some Democrats running for president have said they want to tear down the existing border walls that help ensure a lawful immigration system, instead of a free-for-all in which criminals and opiates can flow into the U.S. undetected.
Yet Trump’s argument, that this gives him license to go it alone, does not follow from this.
No, Trump has not shredded the Constitution, as some have claimed. Rather, he is abusing a loophole that a long-ago Congress stupidly created. Trump is stretching the law to its limit, employing a dubious interpretation of old and ill-considered emergency power legislation to justify something it was never intended to justify. In abusing power this way, Trump is standing on the shoulders of giants, including especially his 6-foot-1 predecessor.
No matter how irresponsible Democrats are on the issue of immigration, and no matter how openly they oppose border security, full stop, a political disagreement over immigration does not constitute an emergency under any reasonable definition, nor does it otherwise justify dictatorial executive powers. Conservatives rightly refused to accept such an idea when Obama was president, and they should not be accepting it now.
Trump’s action will be challenged in the courts. It probably will not stand. In the meantime, Congress should act on a bipartisan basis to close loopholes like the one Trump is exploiting. Laws that contain emergency powers should be re-examined and repealed or narrowed. There is already too much room for executive abuses, and unfortunately, nobody wants to deal with this problem while “their guy” is in the White House.