Judge Hanen wisely and correctly enjoined Obama’s unilateral executive amnesty for illegal immigrants

                Federal judge Andrew Hanen of the Southern District of Texas made two key rulings in halting President Obama’s unilateral executive amnesty of 5 million illegal immigrants scheduled to begin this week. The first ruling was that at least one of the 26 states challenging the president’s executive order had legal standing to challenge the executive order in court. The second ruling was that the Obama administration failed to comply with the requirements of the Administrative Procedures Act that prior public notice be given to allow a period for public comments to be submitted and considered before implementation of the new rules could begin.

                Judge Hanen did not rule that the president’s executive order was illegal or unconstitutional, though he suggested as much in his long opinion, describing the unilateral action as, “in effect, a new law.” He wisely confined his ruling to the violation of the Administrative Procedures Act, and properly avoided a constitutional issue the resolution of which was not essential for his injunction to issue. The constitutional issue can and should be addressed on the merits later.

                The New York Times responded editorially to Judge Hanen’s ruling by endorsing the Obama executive order as a “humane and realistic immigration policy”, and dismissing critics of the executive order as having “no meaningful solutions of their own.” But the Times got it exactly backwards. It’s the Obama administration that has no meaningful solution to the problem of illegal immigration. The president’s critics in fact are offering the only possible solution to illegal immigration, deterrence.

                Border security alone is not a solution, as has been repeatedly demonstrated over the years. Border security alone has not and cannot prevent illegal immigration across our borders and by overstaying temporary visas. But it has political appeal because there is no constituency opposed to border security, and vested interests for border security who profit from the expenditure of tax dollars on the border.

                The only possible solution to the enormous problem of illegal immigration is a policy of deterring unauthorized aliens from even attempting to live in the U.S. illegally. How can this deterrence be achieved? By lowering the benefits of illegal immigration, and increasing the costs, both at the border and through interior enforcement. It should be uncomfortable for unauthorized aliens to attempt to live and work in the U.S.

If we are not willing to do that, then we might as well give up trying to enforce a limit on legal immigration to the U.S. We might as well declare that anyone in the world who wants to come and live and work in the U.S. is free to do so, without limit. That’s kind of what the Obama administration is saying: Just don’t get yourself convicted of a serious crime, and you won’t be subjected to deportation. And whenever there are enough of you to make no other solution seem possible, we’ll just enact another in an endless series of big amnesties to give you work authorization, a social security number, and a pathway to citizenship.

That doesn’t sound like a “humane and realistic immigration policy” to me. It sounds like a formula for permanent dysfunction, a never-ending conflict over illegal immigration.

As the inevitable judicial appeals run their course, and as the debate continues in Congress over whether and how to de-fund the unilateral executive amnesty, we should be aware of three important facts.

First, the U.S. system of legal immigration is the most generous in the world, issuing more green cards to legal immigrants every year than all the rest of the nations of the world combined, roughly one million every year. This is a system worthy of our nation of immigrants.

Second, it’s not true that illegal immigrants need to be legalized so they can pay taxes on their income. They are already subject to tax on all income earned in the U.S. whether legal or illegal. And many unauthorized aliens if legalized, instead of paying taxes will qualify for refundable tax credits like the Earned Income Tax Credit, which will allow them to drain dollars out of the U.S. Treasury instead of paying taxes into it. The amount of new federal expenditures to the illegal aliens benefiting from executive amnesty will be in the billions of dollars every year. And a little known IRS ruling allows illegal aliens upon receipt of a social security number for the first time to claim the Earned Income Tax Credit for previous years when they were working illegally.

Finally, we need to remember that, as repeatedly recognized by our federal courts, protecting American workers against harm from an influx of foreign labor has been one of Congress’s “great” and “primary” purposes for limiting the number of immigrants into the United States. At a time of still high unemployment, underemployment, and stagnant wages for American workers, and increasing economic inequality in America, we should have immigration policies aimed at helping American workers, not holding their wages down to increase corporate profits and drive stock prices to record highs for the benefit of rich investors.

Want a digest of WHYY’s programs, events & stories? Sign up for our weekly newsletter.

It will take 126,000 members this year for great news and programs to thrive. Help us get to 100% of the goal.