The cautious road ahead for Republicans

The president sought to start a war last night.

In Barack Obama’s announcement revealing the details of an executive order on immigration, he tried to frame his as a plan that was specific and tailored. Obama reaffirmed the principles in deferred action for childhood arrivals (DACA), expanded the age of those DACA-eligible children of illegal immigrants to 33 and above, and reaffirmed his commitment not to deport the parents of those children, who were not going to be deported anyway, so long as they have lived in the United States for five years.

That is what Obama said, and that is what his audience heard. The practical effects of the president’s move are more far-reaching and will have an immeasurably deleterious effect on American civic culture.

Obama did not mention it, but his plan will also allow millions of eligible illegal immigrants to receive work permits and compete for jobs alongside American citizens. Obama effectively codified the principle that bringing a child into the United States is a ticket to legal status, which will inevitably result in new waves of immigrants from South and Latin America sweeping across the border. The president declared millions of illegal immigrants, without much specificity, ineligible for deportation which expands the powers of prosecutorial discretion to a ludicrous degree. The executive has the power to accelerate or decelerate enforcement priorities, not to abjure the enforcement of the law entirely.

“Not really changing immigration law as much as erasing it,” The Washington Examiner’s Byron York observed, and he is right. But average Americans did not hear that. They heard the president wax poetic about the plight of the working illegal immigrant, an individual who is not a theoretical construct but a person of flesh and blood to millions of good-hearted Americans. They heard him weave flowery prose into a compelling narrative, around which he proposed circumspect action to make an unfair system fairer. Looming, the president warned, is the threat posed by overzealous Republicans who will seek to challenge his self-evidently sensible measure in the courts, or even shut down the government in a fit of irrational pique.

For all this administration’s bravado, they seem to be aware that they are entering uncharted waters. At the very least, the White House knows the legal precedent for their actions is a dubious one.

White House advisor Dan Pfeiffer told CNN just hours before the president’s speech that legislation is the correct way to reform the immigration system, and that the president’s actions will be as narrowly tailored as possible so as to accommodate the future action of Congress. “It’s not appropriate for the president, by fiat, to say that he can do every single thing that was in the comprehensive immigration reform bill,” White House Political Director David Simas agreed. When ABC News reporter Jonathan Karl pressed White House Press Sec. Josh Earnest as to whether the president would veto a budget passed by the new Republican Congress which defunds the implementation of this immigration action, he hedged.

In a memo detailing the legal basis for Obama’s maneuver, the Justice Department conceded that Congress has a significant role yet to play. “As the Court noted in [Heckler v.] Chaney, Congress “may limit an agency’s exercise of enforcement power if it wishes, either by setting substantive priorities, or by otherwise circumscribing an agency’s power to discriminate among issues or cases it will pursue,’” the memo read. “When Congress has been dissatisfied with Executive action, it has responded, as Chaney suggests, by enacting legislation to limit the Executive’s discretion in enforcing the immigration laws.”

The review of the applications from those who plan to seek delayed deportation status will not begin, according to a memo distributed by the White House, until “early 2015.”

“Why not start now if Obama is so tired of waiting?” Ed Morrissey asked. “If Obama’s willing to wait ‘several months’ to take action, why not just wait and at least attempt negotiation with incoming Republican leadership?”

All this hedging suggests that the White House knows it needs a congressional buy-in. The White House’s hope, it seems, is that they do not get one. The administration’s aggressive posturing is simply not conducive to compromise, and they know it. This is about hectoring the most willful elements of the Republican House and Senate caucus to overreact.

“For Republicans the roiling debate over the president’s decision is not only a fight with the White House, but a test of whether they can contain some of the unhelpful passions among their swelling majorities in both chambers,” The Washington Post’s Robert Costa reported.

“Restraint,” The National Review’s Eliana Johnson concurred. “That’s the attitude Republican leadership is urging the party’s rank and file to adopt ahead of the president’s issuance of an executive amnesty for approximately 5 million illegal immigrants tonight.”

Both reporters’ dispatches contain the hint that the GOP is contemplating suing the White House over this action, but appeals by the legislative branch to the judicial branch to rein in the executive branch are almost always doomed from the outset.

Republicans in Congress will have to address this issue themselves, and the proper venue is a budgetary fight with the White House in the next Congress. The GOP will also have to educate the American people about why Obama’s is such a lawless maneuver, and one which will have a negative impact on the lives of millions of Americans still struggling to find and keep work. They will have to talk over the heads of the broadcast press to do so – no small task – and they will have to begin that process today.

There is reason to believe that Republicans will be successful in this endeavor. If Obama believed his proposal would be popular with the American people, he would have been honest about what it will accomplish. He was not. Moreover, this president is not on firm ground and his administration seems aware of that. The GOP has a tricky course to navigate in the coming weeks, but if they do not react excessively and respond to this declaration of political war in kind – the response the White House desires most – they can call the president’s bluff.