THE HILL — Congress may lose much of its authority over immigration this month.
For decades, the Supreme Court has held that authority over immigration is shared between the political branches — the legislative and the executive. But if the court sides with the Obama administration in United States v. Texas, that balance will forever be upset and Congress will find itself with little recourse. Put another way, if the White House wins, the voters will have greater difficultly shaping immigration policy through congressional elections, and petitioning Congress on immigration will serve little purpose.
There’s a central reason why President Obama went around Congress and decreed his controversial Deferred Action programs: He couldn’t get them through the legislative process because they are unpopular with the public. The people’s elected representatives have rejected amnesty on two occasions in recent years: The McCain-Kennedy bill went down in flames in 2007 and a few years later, the Schumer-Rubio bill was similarly defeated. The DREAM Act was also repeatedly introduced but repeatedly failed to gain traction. Americans simply have little interest in returning to a failed idea of the past now that it’s clear mass legalization only encourages more illegal immigration.
In a well-functioning republic, knowledge that the public opposes an idea would be enough for the executive to stop promoting the unpopular idea. But ours is not functioning with the interests of the electorate as the guide. Millions of foreigners who believe they are above the law are being backed by monied interests seeking cheap labor and/or constituents for their cause, and these interests have armies of lobbyists pulling strings on Capitol Hill. Congress has largely allowed the White House to enact immigration policies that the legislators themselves could never put into a bill, lest they be thrown out of office by angry constituents.