By R. Mark Frey
AAP Guest Columnist
Watching President Obama on the news in recent days, I can’t help but think about one of singer songwriter Randy Newman’s songs, “Lonely at the Top”. “I’ve been around the world…You’d think I’d be happy, but I’m not…Everybody knows my name, but it’s just a crazy game…All the applause, all the parades…Oh, it’s lonely at the top.”
Obama seems to be looking more haggard with ever growing flecks of gray in his hair as our nation grapples with such wide-ranging problems as Russian expansionism, ISIS in Syria and Iraq, sluggish economic recovery, health care, and immigration reform.
Yes, immigration reform. Recall that President Obama denounced Congress earlier this summer for ‘kicking the can down the road’ and doing nothing about immigration reform, declaring that he would take executive action by the end of summer. He noted, while chiding congressional Republicans for their obstructionist ways, “it’s not like they’ve been busy with other stuff…So far this year, Republicans in Congress have blocked or voted down every serious idea to strengthen the middle class – not ideas unique to me.”
Now it’s the end of summer. Labor Day has passed, the kids are back in school, and the autumnal night air has begun to display a crisp clarity. How’s President Obama’s efforts on the executive action front coming along?
Before answering, a key question to consider is whether he has the authority to take executive action in the immigration arena, venturing into a realm historically and constitutionally viewed as lying within the purview of Congress. Well, yes he can.
According to a Sept. 3, 2014 letter to President Obama, some 136 immigration law professors and scholars noted that he has, as head of our executive branch, the legal authority to issue directives to the Department of Homeland Security (DHS) about enforcement of our immigration laws. This action, known in various law enforcement contexts as “prosecutorial discretion”, allows DHS to exercise discretion by either foregoing enforcement in certain situations (e.g., prioritizing the deportation of certain individuals over others) or providing a remedy to deportation (e.g., stay of removal).
Prosecutorial discretion does not mean that one is on a pathway to permanent residence but merely provided a respite from an enforcement action. Who knows how best to administer our laws and regulations than the agency empowered to enforce them?
As the letter to President Obama notes, both Congress and the U.S. Supreme Court have emphatically stated in years past that DHS is responsible for administering and enforcing our immigration laws. Such action has been taken by many of President Obama’s predecessors, among them, Republican Presidents Ronald Reagan, George H.W. Bush, and George W. Bush.
If that’s the case, then why are President Obama’s critics mercilessly attacking him, claiming he’s overstepping his powers as head of the executive branch, and even looking at a lawsuit to stop him? At the same time, ironically, they’ve encouraged him to take executive action to “fix” the border situation with unaccompanied children fleeing the violence in Central America.
It’s confusing to say the least. But, as Shakespeare observed a few hundred years ago, “all the world’s a stage,” and it appears that this is just more political theater.
Not long ago, President Obama announced that he will hold off on executive action until after the midterm November elections because the issue is so emotionally-charged, and he wants to avoid jeopardizing the delicate balance of power in Congress. Given that he said he would take action on immigration by the end of summer, it is more than a slight disappointment to hear of yet another delay. The immediate impulse is to grouse and tell him to show some backbone.
Nevertheless, I have to grudgingly respect his decision and admire the fact that he is a leader capable of taking a more nuanced view of the world than some of his predecessors, not rushing headlong into action before thinking things through. Clearly there are political ramifications with executive action and perhaps waiting for the elections to pass may be best in the long term when such other areas as major immigration reform, health care, the economy, energy, infrastructure, and others need to be addressed.
That being said, many people are counting on President Obama to do something about immigration and hold up his part of the bargain following his election to office. To be sure, the hard, solitary, and agonizing decisions must be made because we need to redesign our immigration system. I’m rooting for you, Mr. President, to do the right thing and get it right after the midterm elections.
Yes, it’s lonely at the top.
R. Mark Frey is a St. Paul, Minnesota attorney who has practiced immigration law exclusively for more than 25 years with an emphasis on political asylum, family and marriage-based immigration, naturalization, removal defense, appeals, H-1B visas, and religious workers.