By David French
Thursday, June 13, 2019
I’m going to let you in on a secret about the 2020
presidential contest: Unless unforeseen circumstances lead to a true wave
election, the legislative stakes will be extremely low. The odds are
heavily stacked against Democrats’ retaking the Senate, and that means that
even if a Democrat wins the White House, there will be no Medicare for All, no
free college, and no “democratic socialism.” Democratic candidates are racing
to the legislative left for the sake of programs they’ll never implement and
legislation they’ll never pass. The promises they use to fire up the
progressive base (and inflame red America) are promises they simply cannot
keep.
Kamala Harris is smart enough to understand this fact, so
she’s switched tactics. Why run for president when you can run for queen?
That’s the upshot of the comprehensive immigration plan she released yesterday.
Through executive action alone, it promises to create a roadmap to
citizenship for millions of “Dreamers,” illegal immigrants brought to the
United States as children.
Now, I happen to support a path to legal residence (and
perhaps citizenship) for otherwise law-abiding Dreamers, but only in the
context of a legislative deal that dramatically enhances our ability to control
our border, including through asylum reform. (Otherwise, amnesty would be an
illegal-immigration magnet that only intensifies the immense humanitarian challenge
on the border.) But I also respect the constitutional order. I also know that
no president — no matter how frustrated — has the ability to amend American law
on his or her own. And that’s what Kamala Harris intends to do.
In addition to expanding President Obama’s DACA program —
in part by “eliminating the requirement that Dreamers apply before they turn 31
years-old” and extending the definition of a Dreamer to cover all those brought
to the country at age 17 or younger, rather than age 15 or younger — Harris
would attempt to render Dreamers eligible for green cards. To do that, however,
she would have to wave the executive magic wand, unilaterally “paroling” them
and declaring that their unlawful immigration status exists through “no fault
of their own.” Harris’s plan explains:
Currently, the INA is interpreted
as barring many Dreamers from adjusting their immigration status because
they’ve failed “to maintain continuously a lawful status since entry.” However,
the INA includes an exception for immigrants whose inability to maintain status
was, according to the statute, due to “no fault of [their] own.” Harris will
issue a rulemaking [sic] clarifying the term “no fault of [their] own”
includes being brought to the U.S. as a child.
Moreover, Harris would implement her own version of
President Obama’s Deferred Action for Parents of Americans and Lawful Permanent
Residents (DAPA) program, declaring that “parents of U.S. citizens and legal
permanent residents will be eligible to apply for deferred action if they pass
a background check and have lived in the U.S. since a specified date.”
The scope of the plan is immense. By Harris’s own
calculations, it will “protect over 6 million [illegal] immigrants from
deportation.”
But how is it legal? How can this plan survive when a
divided Supreme Court affirmed a Fifth Circuit Court of Appeals opinion
blocking DAPA? Unlike Obama, who created the DAPA program simply by writing a
memorandum, Harris pledges that she’ll implement at least part of her plan
through the Administrative Procedure Act. In fact, that’s precisely why
progressive legal experts Vox interviewed believe her plan will prevail
where Obama’s failed.
But the APA does not act as a kind of baptismal water,
cleansing dramatic, unilateral changes in the law of the stain of illegality.
Rulemaking is not intended as a mechanism for amending statutes, and presently,
the Supreme Court is perhaps as skeptical of administrative authority as it’s
been in recent history.
So, we can predict what will happen if Harris wins the
White House and attempts to carry out her plan. The instant she promulgates her
rules, a coalition of state attorneys general will file suit in a favorable
jurisdiction. A district judge will enjoin the rules, the appeals process will
take months (if not years), and then the case will ultimately land in front of
a Supreme Court that is unquestionably more originalist than the equally
divided court that rejected DAPA in 2016.
Harris’s promises are worse than promises for
unattainable legislation. She’s promising to implement unattainable policy
through unlawful means. She’s perpetuating one of the most malignant practices
in modern politics: the habit of declaring that the president acts as a
backstop for alleged congressional failure, a sovereign who steps up to trump a
squabbling parliament.
Make no mistake, Harris isn’t just following Obama’s
lead; she’s also mimicking Donald Trump. Presidential overreach is a thoroughly
bipartisan problem, and now we’re seeing the logical next step — abuse of power
as a campaign promise. Thankfully, it’s a promise she likely can’t keep.
No comments:
Post a Comment