Expert's Take: Stopping executive amnesty

Will the president use his executive powers to grant amnesty to 5 million illegal aliens already here in the United States? Is what Obama plans to do even legal? What, if anything, can the GOP do to stop him? Mark Krikorian, executive director of the Center for Immigration Studies, answers our questions:

What is Obama proposing to do exactly?

“Because Congress chose not to approve the legislation he wanted, he is going to try to do unilaterally as much as he thinks the courts of Congress will let him get away with, and the big element of his plan is going to be to unilaterally legalize amnesty of millions of illegal aliens, perhaps five million. This is presented by the administration as merely a putting off of deportation ??? a sort of looking the other way to present it as similar to a cop stopping you and deciding not to give you a speeding ticket, just telling you to slow down.

“That???s not what it is though, because what the president is proposing is the massive expansion of what he did two years ago in the Deferred Action for Childhood Arrivals program, which was his riff on the DREAM Act, which Congress also refused to pass. Rather than simply looking the other way and not pursuing illegal immigrants who fit certain descriptions, what the administration is proposing we do is to give them work permits and social security numbers and states would be required to give them driver???s licenses. Essentially, it???s ???green card light,??? instead of ???green card premium.??? Those aren???t real terms, I???m making them up, but the point is, it???s almost everything that a green card, or formal immigrant status would give you except the eventual ability to apply for citizenship.

“These work permits would have to be renewed every two years, but we have lawful programs like this that give people temporary status, and they???re always renewed, even though the supporters of the president???s scheme pretend that it???s temporary thing. It???s not. Everybody understands it???s irreversible, and that???s one of the reasons there???s been such tense congressional concern to stop this power grab before it happens.”

Is what the president plans to do legal, and if not, what, if anything, can the GOP do about it? Can they stop him before he acts, or do the Republicans have to wait and charge him after the fact?

“The president has a significant amount of discretion in the enforcement of immigration, as in the enforcement of any other kind of law. The problem is that what the president is proposing is essentially to nullify immigration law because he is operating on the principal that the president has the right to admit anyone in the world he wants, any number of people from abroad he wants, and has the right to give them all work permits and social security numbers whether the immigration law provides for that or not.

“In other words, the numerical structure of the immigration law is optional; the president can just ignore that if he wants to. That???s what the president is claiming. This is a serious challenge to Congress??? Constitutional role. The Republicans can in fact deal with it if they want to, and the main tool here is the power of the purse.

“Congress can add a rider to a funding bill saying, ‘no money used in this measure may be spent by the president to do X.’ And that???s what the Republicans look like they???re going to do. This is really the only way they can stop this, to pass a separate budget for Homeland Security or make even a separate budget for the bureau within Homeland Security, USCIS, U.S. Citizen and Immigration Services, that is the one who would have to administer the amnesty. Simply say, ???the president may not use any of the funds provided here for giving work permits to illegal aliens.'”

“The question is, first of all, whether the leadership has the commitment to follow through, and then, what do they do when Obama vetoes that spending bill? Because he will. It???s not the government that is going to be shut down, that???s pretty much off the table, it???s whether one particular piece of the government that???s involved in this amnesty is going to be shut down or not. If I had to guess, I think that???s what???s going to end up happening in February or March. Then it???ll be a kind of political tug-of-war as to who will get the blame for doing it.

“Some in Congress, more outside of Congress, are concerned about this, not because they oppose legalizing certain illegal aliens, but rather because of the damage this does to our Constitutional order. As a lot of conservatives have been pointing out, if Obama gets away with this, he establishes a new precedent that a Republican president can nullify any laws he doesn???t like. This is beyond immigration. This is really a Constitutional problem; it???s a challenge to the Constitutional order. The president is basically saying he is the law and that Congress??? role is advisory rather than being in charge of actually making law.

“The other point about whether they can stop it before or after: I don???t think they???re going to be able to stop it before Obama issues his edict because he???s promised to do it before the end of the year. I???ve heard some rumors today that it could happen this week. I don???t think that???s going to happen, I still think he???s going to hold off until after the middle of December, because there???s the Louisiana runoff, and the current spending bill expires December 11th. I don???t think he???s going to do it before December 11th or 12th. Even if he does that, and the Republican Senate and House, the new Republican Congress convenes next year, and has a fight over this in say, February, it still can be stopped, because this would be a vast thing that would require months and months to get going.

“The point is, this could be nipped in the bud by Congress early next year if they choose to do that. What seems to be going on is the Republican leadership wants to pass the spending bill now that goes through the fiscal year, to the end of September. If they do that, then Obama wins. The amnesty happens, and the Republicans lose any meaningful chance to stop it. I don???t see any lawsuit getting anywhere. I don???t think the courts would even give the House of Representatives standing. And so, the only real way to stop this would be to deny funding, and that is only possible if the budget is debated early, in January or February or March. If the government spending is already locked in by this lame duck Congress through the end of the fiscal year, then Obama will have his nine or ten months to get the amnesty going, and Republicans won???t be able to stop it. It will be too late.”

Is this unlikely, because the House is controlled by the Republicans?

“Hal Rogers, the Appropriations Chairman in the House is working with the Senate to pass an omnibus spending bill through September. So that???s my point: that the Republican leadership seems to be doing everything it can behind the scenes to make sure Obama succeeds in getting this amnesty through, even though in front of the microphones, they???re pretending to be against it. That???s what I???m afraid of, that Boehner and McConnell, while they might not be actually eagerly for it, they might actually be OK with it. They wouldn???t mind if Obama did it.”

Do you think that Obama’s plan will succeed ultimately or not?

“No, I don???t think it will. I think the Republicans will just kick the can down the road as far as the budget goes for now. They???ll just pass a continuing resolution where all the current spending levels of everything is the same. Then they???ll have the fight next year and I think they???ll pull either the whole DHS budget out and pass it as a separate bill or just the USCIS budget and attach the rider to that. Then they???re playing chicken, and who wins? I don???t know what the answer is. Republicans have a strong hand to play if they play it intelligently.”