Obama, Immigration, and the Republican Sweep.


It seems clear, at least to me, that Obama is staking his legacy onto immigration reform. I think his major goal is to get immigration reform pushed through before he leaves office. I suspect he knows that Obamacare will always be a dismal failure; and that’s really more of Nancy Pelosi’s legacy, anyway. Beyond Obamacare, there is very little positive substance to Barack Obama’s presidential legacy.

The recent Republican electoral sweep has upped the ante. Now that Congress is dominated by Republicans, Obama will for the most part be a truly lame duck for the remainder of his term. On January 1st, the new GOP-dominated Congress will take over. Until that time, the Democrats will still control the Senate.

Obama has long threatened to use Executive Order to get immigration reform pushed through. Now that the Republicans will soon control Congress, the pressure is on. In a public address the day after the election, Obama hinted at his intentions:

“Before the end of the year, we’re going to take whatever lawful actions that I can take, that I believe will improve the functioning of our immigration system,” he said. “That will allow us to surge additional resources to the border, where I think the vast majority of Americans have the deepest concern.”

He added: “What I’m not going to do is just wait.”

He is probably referring to issuing an Executive Order. For a good explanation of Executive Orders, and how they related to the immigration debate, we turn to this article from the Washington Examiner:

Congress can overturn an executive order. It can overturn parts of an executive order. If the executive order is based on a statute, Congress can change the statute, thereby nullifying the order. Congress can also refuse to fund activities stemming from all or part of the executive order.

The only instance in which the above does not apply is if the president is acting pursuant to an exclusive power granted to him by the Constitution. Obama’s immigration order would not be such a case. “As long as it is not constitutionally based, Congress may repeal a presidential order, or terminate the underlying authority upon which the action is predicated,” the Congressional Research Service noted in a December 2011 report.

It’s not very complicated. The CRS report mentioned Congress’ revocation of an executive order by President George H.W. Bush concerning fetal tissue research. “Congress simply directed that the ‘the provisions of Executive Order 12806 shall not have any legal effect,'” the report says. It was as simple as that.

If Obama chooses not to act by executive order, but instead issues some sort of “policy directive” — the way he implemented the Deferred Action for Childhood Arrivals initiative that stopped the deportations of thousands of illegal immigrants — then Congress would have the same authority to get rid of all or part of the president’s directive.

Of course, Senate Democrats would block it. And even if Democrats, in some amazingly unforeseen scenario, went along with a move to overturn an executive order, Obama could veto it, requiring a two-thirds vote to override the veto. So a move to overturn an executive order would fail. But it would be specific, targeted, and proportional — not an over-the-top action like impeachment.

By law, Congress has 15 days to protest an Executive Order. After the 15-day period, resisting or repealing an Executive Order is more difficult.

What does this mean for Obama? It means the clock is ticking. Obama has until December 16th to issue an Executive Order on immigration reform and not have it shot down by the new GOP-dominated Congress. If he issues an Executive Order on immigration anytime from now until December 16th, the lame duck Democrat-controlled Senate will not challenge it. If he does not act before Dec. 16th, the new GOP Congress taking over on January 1st will probably protest and get it overturned; at least, I’m assuming they would protest. Most GOP voters (and even many rank-and-file Democrats, in my opinion) oppose amnesty, so I presume the politicians would follow voter tastes. Maybe not. Maybe they’d cave and let the order pass. Of course, that would look pretty bad for the GOP, to take control of Congress and immediately start caving to President Obama.

If Obama opts for a policy directive, like the above article excerpt mentioned, then it will be more difficult to overturn. It is unlikely that two-thirds of both houses of Congress would agree to overturn it; The GOP does not have enough of a majority. Ultimately, that would go the Supreme Court for a final judgement.

Either way, it is important for people to understand this about immigration reform: illegal immigrants already living in the USA are not going anywhere. There are something near 15 million illegal immigrants living in the USA. If Republicans think they can boot all these people out somehow, they are sorely mistaken. They ain’t going anywhere. By that same token, if Obama and the pro-amnesty crowd believe that 15 million illegal immigrants are all going to step forward and identify themselves as part of some amnesty scheme, I think they are sorely mistaken. I do not think an amnesty scheme would work as smoothly as they think it might.

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