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Obama’s immigration order should stand

US President Barack Obama.
US President Barack Obama.EPA/Dennis Brack / POOL

The federal government isn’t going to deport all 11 million illegal immigrants living in the United States, no matter who wins next year’s election. Given that reality, it’s vital that the president retain the leeway to set sensible priorities about how to tailor the law enforcement response. Once you put aside the political hot air, that’s what’s at stake in a case the Supreme Court agreed on Tuesday to hear this spring.

The case, filed by Texas and 25 other states, challenges President Obama’s 2014 executive order that would have allowed some unauthorized immigrants to apply for temporary work permits and shielded them from deportation. That policy, now on hold due to the court challenge, would allow federal immigration authorities to focus their resources where they are needed — for instance, on violent criminals.


As the administration has argued, there’s ample precedent for the order. Presidents of both parties have protected certain classes of immigrants from deportation over the years. Obama’s action differs only in size, not in substance, from past orders; it would cover about 4 million immigrants. But headed into an election year, the dispute has taken on a heavy partisan hue, with Republicans keen on portraying Obama as a president recklessly abusing his power.

Americans rely on the court to rise above politics on hot-button issues, as the justices did when they upheld Obamacare from politically motivated attacks in the run-up to the 2012 election. Likewise, the court should turn aside the Texas complaint, which looks more like a political stunt than a serious legal challenge, and could hobble the executive branch’s ability to respond to immigration crises in the future.

Not only did Obama act lawfully, but the order was much needed. What to do about illegal immigration has paralyzed Congress for a decade, and there’s no sign that lawmakers will be able to agree to a realistic plan anytime soon. Meanwhile, that inaction has a human toll: Living in the shadows, immigrants are prone to abuses and are less likely to come to police if they’re the victim of a crime. Obama’s deferred-deportation order would give the immigrants it covers — those who were brought here as children, along with the parents of lawful US residents — the ability to step out of the shadows.


In their arguments, Texas and the other states acknowledge the president has authority over immigration, but maintain that the sheer number of immigrants this order involves makes it a de facto change to federal immigration law. But as legal scholars have pointed out, there is precedent for authorities to ignore whole classes of offenders when prosecutorial resources are better used elsewhere. Take student marijuana possession, argues law professor Ilya Somin. Federal prosecutors hardly ever pursue the crime, even though it clearly violates federal law. Is the number of college students who have gotten away with marijuana possession greater than the 4 million or so undocumented immigrants covered by Obama’s order? Very likely. And of course, a future president could reverse Obama’s order, which would not be true if it were actually a law.

Obama, ironically, has overseen the deportation of more undocumented immigrants than his predecessor. If the nation could deport itself out of its immigration stalemate, it would have done so by now. The truth is that there’s no law-enforcement solution to immigration, and any honest approach to fixing the nation’s broken immigration system has to start with a recognition that many of those 11 million immigrants are here to stay. That’s tough for many Republicans to swallow, since they count on conservative anti-immigrant voters to stay in power, but it’s the inability to come to terms with that fact that has stymied every effort at immigration reform in Congress.


Indeed, the paralysis on Capitol Hill only makes it more important for the Supreme Court to protect the president’s authority to direct immigration policy. Since Obama — and his successor — have been left to grapple with the challenge alone, they at least deserve to keep the tools to manage immigration that the presidents before them have had.