"I believe this action by the Obama administration is unconstitutional and circumvents Congress' authority." That was Mississippi Republican Governor Phil Bryant explaining last week why his state became the first to join a lawsuit challenging President Obama's recent decision to temporarily defer deportations and authorize work permits for certain young undocumented immigrants. But Bryant is wrong -- the law has permitted the president's actions for the past two decades.
In fact, if Republican critics should be upset at anyone, it should be Ronald Reagan. It was the Reagan administration in 1987 that promulgated the original "deferred action" regulation that Obama is now using. The regulation, 8 CFR § 274.12 (c)(14), authorized employment for any "alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment."
Deferred action's acceptance into the current legal structure is a story dominated by Republicans. The Reagan administration implemented the rule as part of the Immigration Reform and Control Act of 1986. The law prohibits employing unauthorized immigrants, but allows the president discretion to authorize employment. Under 8 U.S.C. § 1324a(h)(3), "'unauthorized alien' means, with respect to the employment of an alien at a particular time, that the alien is not at the time either... authorized to be so employed by this chapter or by the attorney general."
Every administration since Reagan has used this executive discretion, even for whole classes of immigrants. As recently as 2005, President George W. Bush used it for immigrant victims of Hurricane Katrina. The same year, Congress under Republican leadership passed the REAL ID Act, which explicitly recognized "deferred action status" in statutory law for the first time.
The Supreme Court, under Reagan-appointee Chief Justice William Rehnquist, has already sanctioned "deferred action." Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999) found that "at the time [the Illegal Immigration Reform and Immigrant Responsibility Act of 1996] was enacted the INS had been engaging in a regular practice known as 'deferred action'... many provisions of the Act are aimed at protecting the Executive's discretion from the courts -- indeed, that can fairly be said to be the theme of the legislation."
Mississippi's lawsuit attacks laws and judicial precedent made by Republicans -- Reagan, Bush, and Rehnquist. The protest that the Reagan administration never would have envisioned such a broad use is not only dubious given Reagan's support for amnesty, but also legally irrelevant. Congress makes law, not a president's unstated intentions.
The notion that Obama's deportation deferrals indicate a general refusal to apply immigration law is ridiculous. This administration has set the record for most employer sanctions and deportations in U.S. history. It is even forcing states and localities to detain immigrants. The belief that deportation deferrals will lead to "rule-by-waiver" or allow the president to refuse to enforce tax law is also baseless. If millions of people suddenly refused to pay their taxes, however, the president could set enforcement priorities, which is exactly what has happened here.
Not only are Mississippi's legal arguments without merit, the plaintiffs likely lack standing in the first place. The state is suing on behalf of agents who think the order is unlawful. But plaintiffs must demonstrate "harm" to sue. But since immigration violations are victimless crimes, failure to prosecute them harms no one. Moreover, federal courts cannot resolve disputes in the executive branch. As immigration attorney Ben Winograd notes, "the reason is obvious: if government employees could sue their superiors over legal disagreements, they could -- quite literally -- make a federal case over any difference of opinion."
Today's Republicans have not only abandoned their predecessors, but also the Constitution's framers. With the presidential pardon power, America's founders explicitly recognized a role for executive discretion. Federalist 74 justifies the power by saying that "without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel." Never has the concept of "unfortunate guilt" applied more concretely than to children brought illegally to America through no fault of their own. Calls to expel them run counter to America's founding principles, and in this case, current law.