The Next Border Crisis

Column: How Congress can fight Obama’s unconstitutional amnesty

detainees sleep in a holding cell at a U.S. Customs and Border Protection processing facility in Brownsville,Texas
Detainees sleep in a holding cell at a U.S. Customs and Border Protection processing facility in Brownsville,Texas / AP
November 14, 2014

Last summer the southern border disappeared. Unaccompanied minors from Central and South America surged across the Rio Grande. Desperate parents had sent their children thousands of miles north. The impoverished girls and boys were housed in ramshackle facilities before being sent elsewhere. The images were heartbreaking. They seemed drawn from a post-apocalyptic future. And they were entirely preventable.

Government policy caused the border crisis of 2014. Not the 2008 law granting special protections to unaccompanied minors from countries other than Mexico, an ex post facto explanation meant to blame George W. Bush. It was after Obama’s 2012 authorization of deferred action and work permits for illegal immigrants who arrived in the United States as children that such migration spiked. This blatant political move, as well as the president’s repeated pledge to amnesty the rest of the illegal migrant population, spurred the uptick in border crossings. The humanitarian tragedy followed.

Now Obama wants to repeat history. Indeed, he wants to expand the 2012 program so that it encompasses not hundreds of thousands of illegal immigrants but millions of them. As first reported by Fox News Channel, the president may soon announce a 10-point plan that legalizes some 4.5 million illegal immigrants, offers 500,000 tech workers and their spouses (and later, their extended families) a path to citizenship, and increases opportunities for illegal immigrants to become naturalized by joining the military. A pay raise for immigration enforcement officers and token border security measures are also under consideration.

Not only would a presidential declaration of such measures insult legal immigrants as well as the voters who repudiated the president, his policies, and his party on November 4. Not only would it very likely provoke a constitutional crisis. The executive order would establish the incentives for the next wave of families to show up on an unprotected and unprepared southern border.

The 150 million adults worldwide who would move to the United States if given the chance will draw the conclusion that their status and future are secure as long as they end up on U.S. soil. Pay the snakeheads and coyotes, avoid the authorities, and fall under the next amnesty. Just as it happened in 1986 and happened again, piecemeal, in 2012 and 2014.

I do not consider it humanitarian to induce people to undertake perilous and uncertain journeys through hazardous territory in the hopes of joining a population that is at best ambivalent about them. I think it is cruel. And it is cruel not only to the immigrants, but also to American citizens, who must cope with the attendant fall in low-skilled job opportunities and wages, rising inequality, economic and social consequences of population density, and erosion of social cohesion. These are all reasons confidence in public institutions is at a low. Obama’s executive order will drive it lower.

How to fight him? Begin with the lame-duck session of Congress. The GOP cannot allow Harry Reid to pass a continuing resolution that funds the government through the rest of the fiscal year, thereby depriving Republicans of the opportunity to address executive amnesty using its departmental budgets.

"Using the normal appropriations process, with bills the House has already drafted," write the editors of National Review, the Republican Congress "can attach riders regarding, say, prosecution of illegal immigrants to Homeland Security funding, or power-plant regulations to EPA funding."

Such riders are the best weapons Republicans have to delay and undermine harmful and constitutionally dubious policies such as executive amnesty. To unilaterally disarm would be worse than stupid. It would be a betrayal.

Next, prepare concurrent resolutions censuring the president for his reckless disregard for the legislature. Impeachment is a dead-end street. It won’t happen, it will energize the Democrats, it is exactly what the president wants, and in the utopian event it succeeds it would leave the country with President Joe Biden. I fail to see how that would be an improvement.

A censure resolution puts Congress on the record opposing presidential lawmaking and reasserting its constitutional authority as the first branch of government. Censure preserves congressional integrity. The alternative is passivity. "Filing lawsuits that ask courts to referee the disputes" between the executive and legislative branches of government, writes Christopher DeMuth Sr. in the Weekly Standard, "is constitutionally supine and risks involving the judiciary in continuous supervision of the political branches."

Not long ago Republican politicians wanted to be known as constitutional conservatives. Here is their chance to prove it.

Finally, refuse the president’s hostage threat. He says he will revoke any executive order if Congress passes legislation accomplishing the same end. Who does he think he is? Luca Brasi? The House hasn’t passed the Senate bill authored by Chuck Schumer because a majority of the House Republican caucus opposes it. Laws are not supposed to pass unless they embody the sense of the community. The entire community. That’s why we have two chambers of Congress and three branches of government.

Moreover, the party behind the Schumer bill lost the Senate after it was passed, with several Republican candidates running on opposition to legalization before the border is secure. And Obama expects them to give Schumer a victory nonetheless? This is lunacy. It would be oddly funny if it weren’t so dangerous.

Boehner and McConnell can announce a simple rule: No immigration reform if Obama commits such a brazen and unconstitutional act. No piecemeal bills. One bill: border security legislation authorizing the construction of an actual wall (call it infrastructure spending) and making E-Verify compulsory.

Such measures do not preclude legalizing the population of illegal immigrants. They are prerequisites for it. They are not anti-immigrant. They are anti-illegal immigrant. They are not part of the corporate agenda of comprehensive reform, fast-track authority, and corporate tax cuts. They are part of a middle class agenda of family tax relief, sound money, and replacing Obamacare. Nor is that a weakness. It’s a strength.

Obama will veto an enforcement bill. Budget politics and censure won’t prevent the next surge across the border. They won't stop the next humanitarian crisis. But at least Congress will have used the opportunity to reassert its prerogatives and position the Republicans as the party of rule of law and secure borders.

It will take more than replacing Obama to truly reform the nation’s immigration law. It will take a president, Republican or Democrat, for whom the phrase "We, the People of the United States" has more than rhetorical meaning.