First, congrats to many millions of people who can remain in this country, a status they should have always have had. We can argue whether anyone who makes his or her way over the border should be able to vote or draw benefits, but there is no doubt in my mind that they should be able to live anywhere they can pay the rent and work anywhere that there is an employer willing to pay them.
I am willing to accept the analysis of folks like Ilya Somin who say that the President's non-enforcement decision on immigration laws is legal. But I think his concept of "precedent" when he says there are precedents for this sort of thing is way too narrow. This is an important, dangerous new precedent.
What I think folks are missing who make this argument about precedent is that while many examples exist of the Executive Branch excercising proprietorial discretion, the circumstances are without precedent in both scale and well as in its explicit defiance of legislative intent. One can argue that Reagan's executive actions vis a vis immigration provide a precedent, for example, but Reagan was essentially following the intent of then-recent Congressional legislation, arguably just fixing flaws with executive orders in the way that legislation was written. What he did was what Congress wanted.
The reason I think Tiberius Gracchus is a good analog is that Gracchus too took actions that were technically legal. Tribunes always technically had the legal power to bypass the Senate, but in hundreds of years had never done so. Despite their technical legality, his actions were seen at the time as extremely aggressive and plowing new Constitutional ground, ground that would soon become a fertile field for authoritarians to enhance their power.
Somin includes the following, which I think is an example of where defenders of the President's process (as different from the outcomes) are missing reality. He writes:
I would add that the part of the president’s new policy offering work permits to some of those whose deportation is deferred in no way changes the analysis above. The work permits are merely a formalization of the the president’s exercise of prosecutorial discretion here, which indicates that the administration will not attempt to deport these people merely for being present in the United States and attempting to find jobs here. They do not purport to legalize their status, and the policy of nondeportation can be reversed at any time by the president or his successor.
This is one of those statements that are technically true, but totally obtuse at the same time. Issuing formal get-out-of-jail-free cards to 5 million people is unprecedented. Think of it this way: Imagine a Republican President who is opposed to the minimum wage. The Executive branch is tasked with enforcing that law, so wold the folks defending the President's methods also argue hat the government can issue permits to 5 million businesses allowing them to ignore labor law? Or emissions standards? Or insider trading laws?
People are just being blinded by what they rightly see as a positive goal (helping millions of people) if they fail to see that the President issuing licenses to not be prosecuted for certain crimes is a huge new precedent. Proprietorial discretion is supposed to be used to avoid patent unfairness in certain cases (e.g. the situation in Colorado with conflicting state and Federal laws on marijuana). It is not meant to be a veto power for the President over any law on the books. But I can tell you one thing -- it is going to be seen by future Presidents as just this. Presidents and parties change, and for those of you swearing this is a totally legal, normal, fully-precedented action, be aware that the next time 5 million wavers are issued, it may well be for a law you DO want enforced. Then what?
Update: Libertarians are making the case that the Constitution never gave Congress the power to restrict immigration. I could not agree more. However, I fear that will have zero impact on the precedent that will be inferred from all this. Because what matters is how the political community as a whole interprets a precedent, and I think that this will be interpreted as "the president may issue mass waivers from any law he does not like." Now, since I dislike a hell of a lot of the laws on the books, perhaps over time I will like this precedent. But the way things work is that expansive new executive powers seldom work in favor of liberty in the long run, so I am skeptical.