President Obama’s immigration policy

's announcement yesterday of amnesty for 4.7 million out of an estimated 11 million illegal immigrants was widely expected. David Gergen a former presidential advisor has analysed the issue over at CNN.

It isn't the underlying that is troubling. Just the opposite. We have known for years that we would never deport some 11 million people from our midst. Many have become hard-working, productive members of our society, and Congress, working with the White House, should long ago have provided them a safe pathway out of the shadows.

In that sense, this policy is good. One wonders indeed why the President, having decided to take the plunge, didn't go further and build a pathway to fuller benefits such as care for those establish a solid record of work and good behaviour.

Nor is it even the questionable legality that disturbs. On many occasions during our history, presidents have tested the boundaries of their constitutional power through executive orders: Lincoln's suspension of habeas corpus, his Emancipation Proclamation, Franklin D. Roosevelt's creation of the Works Progress Administration, FDR's awful internment of Japanese-Americans, and Harry Truman's integration of the armed forces were all accomplished through controversial executive orders.

Recent polls agree with Gergen, the public like the thrust of the policy but disagree with using an executive order.

Even so, President Obama's executive order on immigration seems to move us into uncharted, dangerous waters. It is one thing for a president like Lincoln or FDR to act unilaterally in national emergencies. In nearly all the big examples of the past — like the Emancipation Proclamation — they were also acting as commander-in-chief. As the one foremost responsible for protecting the nation's existence, a president as commander-in-chief has long been recognized as having inherent powers that stretch well beyond those of normal governance.

Agreed. It is hard to argue that immigration in 2014 in the USA is an 'emergency' on the scale of the abolition of slavery.

The Obama administration is citing examples of Ronald Reagan and George Bush Snr issuing executive orders on immigration but there is an important difference.

The White House has repeatedly pointed to immigration-related executive orders issued by past presidents, notably Ronald Reagan and George H.W. Bush, to support the legality of President Obama's order and to palliate its partisan sting.

Both the executive orders cited, however, can be distinguished from the case at hand. Reagan granted amnesty to 100,000 undocumented immigrants to close a loophole in the comprehensive immigration reform bill passed in 1986.

Bush's order, which granted amnesty to at most 1.5 million people (although the actual number who benefited is likely much smaller), also attempted to clean up a piece of legislation.

So whilst his predecessors issued executive orders in relation to an existing directive from Congress (the 1986 immigration legislation) Obama has issued his own directive which is different. Gergen then addresses issues of governance and the Constitution.

One can argue whether this executive order is legal, but it certainly violates the spirit of the founders. They intentionally focused Article One of the Constitution on the Congress and Article Two on the president. That is because the Congress is the body charged with passing laws and the president is the person charged with faithfully carrying them out.

In effect, the Congress was originally seen as the pre-eminent branch and the president more of a clerk. The president's power grew enormously in the 20th century but even so, the Constitution still envisions Congress and the president as co-equal branches of government — or as the scholar Richard Neustadt observed, co-equal branches sharing power.

The end result is going to be even more distrust between Democrats and Republicans in Washington DC. If Obama had have waited 6 months to give Congress a chance to act it could have led to a bi-partisan solution. The arguments that have broken out regarding why neither side didn't pass legislation in the House when it had the chance (Democrats between 2008-10 and the GOP post 2010) is just a pointless debate about the past and does neither side no credit. Both parties must share the blame.

The best hope is that the new Congress does address this issue with a bipartisan bill that the President will eventually sign. That will require the GOP to show some constructive cohesive leadership, something they've struggled with up till now.

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