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After years of disclaiming authority to do so, and failing to work with Congress to come to a legislative solution, last night President Obama announced unilateral action on immigration. The more controversial aspects of the president’s plan include:

• Expand deferred action for young illegal immigrants. In June 2012, the president deferred prosecution for illegal immigrants who came to the U.S. before June 2007 and were under age 31 as of June 2012. The expansion would cover anyone who entered before they were 16 and change the cutoff from June 2007 to Jan. 1, 2010. An estimated 300,000 illegal immigrants would become eligible under this expansion.
• Expand deferred action to include the parents of U.S. citizens and legal permanent residents. This could result in more than 4.5 million adults remaining in the country.
• Discontinue the Secure Communities program. Under this program, federal law enforcement agents compared fingerprint information received from local jails with immigration databases.
• Expand the Optimal Practical Training program to increase high-skilled workers. The Government Accountability Office reported that the program lacked oversight and that foreign students abuse the program to acquire unauthorized employment in the U.S.
• Grants a “provisional waiver” to the current law which requires immediate relatives of U.S. citizens and law permanent residents to exit the United States before applying for a green card. As a result of this waiver, these unlawfully present immediate relatives would be allowed to live and work in the United States while they wait for their green card to become available despite their lack of immigration status.

The President and Democrats Said He Can’t Do This

At least 22 times the president has said he lacks the authority to do the very thing he did last night. He has repeatedly spoken of limitations on his power, respecting Congress’ authority under the Constitution, and his obligation to enforce the law.

“There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply through executive order ignore those congressional mandates would not conform with my appropriate role as president.” – President Obama, 2011

Many of the president’s political allies agreed with this. Senator King stated: “It would be a mistake … I would oppose a unilateral action of a significant nature on immigration reform both on constitutional grounds and on policy grounds.” Senator Franken put it plainly: “This is a job for Congress.” Even the Washington Post noted the president’s about-face on executive amnesty.

“Previously he said that was not possible, using evocative language that he is not a ‘king’ or ‘the emperor.’ Apparently he’s changed his mind.” – Washington Post Fact Checker, November 18, 2014

What Has Changed?

The president’s reversal raises the question: What has changed since his previous statements? For one thing, the will of the American people has become unmistakably clear – they do not want executive amnesty.

• The president’s policies were repudiated at the ballot box. Going into this year’s congressional elections, the president said his policies were on the ballot. Americans overwhelmingly voted to move away from those policies.
• Oregon voters – by a vote of 66 percent to 34 percent – rejected a ballot measure allowing illegal aliens to have resident driver’s licenses.

A few hours before the president addressed the nation, the administration released an opinion from the Department of Justice’s Office of Legal Counsel giving a green light to the proposed deferred action program. The opinion fails to identify a limiting principle to prosecutorial discretion. It is apparently left entirely in the president’s hands. The opinion also cited congressional inaction. Although the opinion claims not to draw an inference from congress’ decisions, it does note that congress has relied upon the practice of deferred action in some legislative decisions.

The president knows that he does not have the power to take the executive actions he is taking. The American people do not want him to. Rather than choose undemocratic confrontation, the president should work with Congress in the coming year to solve the problems with our immigration system. The decision to put a stick in the eye of congress not only offends the constitution’s balance of power, it effectively shuts down pathways to negotiation and compromise – the way democracies are intended to function.