If Obama’s immigration actions are upheld, what’s left of Congress?

Congress may lose much of its authority over immigration this month.

For decades, the Supreme Court has held that authority over immigration is shared between the political branches — the legislative and the executive. But if the court sides with the Obama administration in United States v. Texas, that balance will forever be upset and Congress will find itself with little recourse. Put another way, if the White House wins, the voters will have greater difficultly shaping immigration policy through congressional elections, and petitioning Congress on immigration will serve little purpose.

{mosads}There’s a central reason why President Obama went around Congress and decreed his controversial Deferred Action programs: He couldn’t get them through the legislative process because they are unpopular with the public. The people’s elected representatives have rejected amnesty on two occasions in recent years: The McCain-Kennedy bill went down in flames in 2007 and a few years later, the Schumer-Rubio bill was similarly defeated. The DREAM Act was also repeatedly introduced but repeatedly failed to gain traction. Americans simply have little interest in returning to a failed idea of the past now that it’s clear mass legalization only encourages more illegal immigration.

In a well-functioning republic, knowledge that the public opposes an idea would be enough for the executive to stop promoting the unpopular idea. But ours is not functioning with the interests of the electorate as the guide. Millions of foreigners who believe they are above the law are being backed by monied interests seeking cheap labor and/or constituents for their cause, and these interests have armies of lobbyists pulling strings on Capitol Hill. Congress has largely allowed the White House to enact immigration policies that the legislators themselves could never put into a bill, lest they be thrown out of office by angry constituents.

Obama is aware of this and decided to wait until shortly after the 2014 midterm election to announce his currently enjoined amnesty for illegal alien parents (Deferred Action for Parents of Americans, or DAPA) and his unilateral changing of the terms of his Deferred Action for Childhood Arrivals (DACA) amnesty to expand it include even more people. He did not want legislators to have to defend such an unpopular plan, so he did them a favor and waited until after the votes were counted. Many legislators (on both sides of the aisle) were grateful to be able to campaign without the risk of angering either the voters or their cheap labor-seeking funders.

It may now be that the Supreme Court will do both Obama and these legislators a favor by keeping in place an amnesty that was never debated or voted on. It’s amnesty without accountability. Obama knows that the less the American people can influence immigration policy, the more success he’ll have in advancing his agenda.

Congress is perhaps most to blame, however, since the legislative body did nothing to prevent this usurpation of its authority over immigration, having done nothing in 2012 to stop the original DACA amnesty. Some House Republicans have since filed a brief in the Supreme Court in opposition to DAPA and the extended version of DACA; some Democrats have filed a brief in support of Obama’s unilateral actions. But the original DACA is going unchallenged.

All members of Congress — even those who support the underlying goal of DACA — should not be so quick to cede their authority to the executive branch. A different president may use this authority to advance a very different policy in the future (have Democrats not read the immigration platform of a Donald J. Trump?).

My organization came up with 79 different enforcement-oriented actions a president could take on immigration using executive action alone (lawfully). Good luck using litigation to stop any of these if the Supreme Court upholds unilateral actions as brazen as DACA and DAPA.

Basically, if the Supreme Court makes no effort to rein in the Obama administration, future immigration policy will largely be decreed by the executive. Voters will have little reason to spend much time contemplating the immigration positions of congressional candidates. In fact, congressional candidates will likely start to avoid the issue — protesting that it’s out of their hands — and immigration debates will only take place every four years.

On top of this, the process of creating immigration policy within the White House will likely become even more unresponsive to the people. Currently, big policy changes within administrative law must go through a notice-and-comment process which allows the public to provide feedback and presumably influence the policy before it goes into effect. (Congress created the Administrative Procedure Act decades ago to make sure that the White House would be responsive to the public.)

A key argument of the states suing the Obama administration is that DAPA and the extended DACA never went through this process. If the policies are allowed to stand, it would be a huge incentive for the executive branch to conduct more sweeping policy changes through memos rather than through the administrative process.

“You can imagine agencies shifting a lot of rules that would normally go through notice-and-comment into instead policy statements,” noted Cornell Law Professor Jed Stiglitz. “To the extent we think we benefit from the notice-and-comment process, the transparency and so forth, that [shift] could be harmful.”

Now more than ever, Congress needs to be responsive to the people. But it cannot be if the Supreme Court largely strips Congress of its authority over immigration and empowers the executive branch to a greater extent than it already has.

Feere is the legal policy analyst at the Center for Immigration Studies.