An estimated 5 million undocumented immigrants who have received protection from deportation, work permits and some federal benefits under an executive order by President Barak Obama are once again at risk, after a federal judge issued a preliminary ruling last month suggesting the President and the Department of Homeland Security (DHS) may have overstepped their constitutional authority. Now, the President is fighting back, declaring it will appeal the order if it is not lifted this week.
The Obama administration suggests that their program offers guidance for border agents, not formal rules, and asserts the executive branch has constitutional authority to set immigration enforcement priorities without congressional approval or review by federal judges. Under the program, immigrants who have been in the United States for at least five years and have a child who is a citizen would qualify if they pass a criminal background check.
That Obama sidestepped congressional approval is no surprise to anyone who follows the acrid partisan war between the President and the opposition-controlled legislative branch. When Republicans won the majority in both the House of Representatives and the Senate many claimed the President would be a "lame duck" unable to pass any of his ideas through the locked Congress. Instead, the President has stubbornly used every method at his disposal – including executive actions – to ram through his policies like immigration in his last two years in office. To some, Obama seems a hero boldly pushing through partisan gridlock – to others he seems a tyrant.
Oral arguments challenging the President's immigration policies will be heard May 4, but the rebellion against the executive action has been fierce. House Republicans unsuccessfully threatened to withhold funding from the DHS if provisions were not included to block Obama's actions. The standoff ended this week when the House voted to fund the DHS through the end of the year, with mostly Democratic votes. The result was a victory for the President, and an embarrassment to House Speaker John Boehner.
"I am as outraged and frustrated as you at the lawless and unconstitutional actions of this President," Boehner told his caucus, according to Fox News. Boehner now faces backlash from his own party, who view it as capitulation.
Boehner, however, and moderates in the Republican Party understand that voters may blame Congress for holding the country hostage when they do not get what they want. Surveys show that most Americans lay the fault for government shutdowns with the Republican opposition, and with a 2016 general election coming up, the Republican leadership does not want to be seen as simply the "Party of No."
Now that the Republicans enjoy a full majority in the House and Senate they hold the reins on spending and every bill that the President puts forward – but they also take on the responsibility of getting things done in Washington. On nearly every issue, from raising the minimum wage to cybersecurity, the President can push forward populist policies and then blame the Republican opposition when they fail. Congress can also pass as many Republican-backed bills as they want that Obama can then veto with the presidential pen.
This state of affairs will certainly drive the Republicans crazy. Obama will come off looking like a hero or a villain, depending on your political leanings, and the real victim – as always – will be the American people. Partisan acrimony will increase and the country will further divide into red and blue. But that was bound to happen anyway. To see Obama rise above his "lame duck" predictions is refreshing, at least.
With the Presidential and Legislative branches at odds, it remains up to the judicial branch to decide what will become the law of the land. And the wheels of justice are slow, to say the least.
No matter what the courts decide, a bill on comprehensive immigration reform must pass Congress, because Obama's executive order will only be temporary until the law is changed.
"We've got to pass a bill," Obama said at a town hall meeting in Miami. "The pressure's got to continue to stay on Congress. The pressure's got to continue to stay on the Republican Party that is blocking comprehensive immigration reform… For the next set of presidential candidates -- because I'm term-limited, Michelle's happy about that -- when they start asking for votes, the first question should be, 'Are you really going to deport 11 million people? If not, what's your plan?' ... We're going to have to keep on the political process on a separate track."
If anything, the next two years will be interesting in Washington. The ball is now in the hands of the Republicans, and how far they are willing to go to get what they want, and at what cost, remains to be seen.
The author is a contributing writer to Beijing Review, living in New York City