President Barack Obama’s “deferred action” amnesty for about half of the nation’s illegal immigrants is on temporary hold, thanks to the ruling of a federal district judge in Texas. But whether the courts eventually uphold his action or overrule it, it will not solve the nation’s immigration problems.
Only Congress can do that.
Unfortunately, the president’s unilateral approach has made the job harder. It is not supported by public opinion and was rightly taken by the newly elected Republican Congress as a direct affront to the legislative branch and the Constitution.
But political reality blocks Congress from overturning the president’s decision. Republican control does not extend to a veto-proof majority, or to a filibuster-proof Senate. That has effectively stymied the effort by the House of Representatives to deny the use of federal funds to implement the president’s deferred action plan.
Nevertheless, House Speaker John Boehner, R-Ohio, has turned aside a plea from Senate Majority Leader Mitch McConnell, R-Ky., to drop that House effort and allow a funding bill for the Department of Homeland Security to be voted on in the Senate. Funding for the department expires at the end of the month, and the Senate is scheduled to vote on whether to proceed with the bill providing new funds on Monday.
If the House position on the bill doesn’t change, the Senate will be unable to pass it because of a Democratic filibuster.
Meanwhile, though, Monday’s ruling by U.S. District Judge Andrew Hanen gives Mr. Boehner a chance to avert the impasse. The DHS, while planning to appeal, has agreed to abide by the judge’s temporary injunction against implementing the president’s deferred action on deportation plan.
That means Congress can defer its own plan to stop the Obama amnesty and approve funds for Homeland Security. Speaker Boehner should seize the opening.
Judge Hanen’s decision and injunction must stand review by higher courts. He ruled that the 26 states, including South Carolina, that sued to block the deferred action plan have standing to sue because the plan imposes costs on them, for example, for issuing drivers’ licenses.
He also observed that they stand a good chance of persuading a court of their views on the dubious legality of the president’s plan. He said the administration did not follow federal law requiring public hearings on the plan.
But Judge Hanen stayed neutral on the constitutional questions raised by the president’s unilateral rewriting of immigration law and on the administration’s immigration policies.
“Amnesty or not, the issues before the Court do not require the Court to consider the public popularity, public acceptance, public acquiescence, or public disdain for the [delayed deportation] program,” his opinion said.
However, the constitutional issues will come up in the court hearings he has allowed to proceed, unless his ruling is overturned.
With the prospect that the basic issues of executive vs. legislative powers may yet be settled in court, there is a time to set aside political head-butting and to begin building an immigration plan that reaches beyond the question of illegal immigrants and has broad public support.
And only Congress can do that.