The media have played up the the challenge to the President’s executive order granting legal status to millions of illegal immigrants as a major case on the separation of powers. It’s simply not that big of a case. As everyone knows, President Obama has given defacto amnesty, the assurance of non-enforcement of the immigration laws, to millions of illegal immigrants. Opponents call this law making, i.e., he has spared these people from mandatory removal from the country. But anyone who follows immigration enforcement knows this is not how the system works. Congress has never appropriated enough money to deport the millions of illegal immigrants in the country, 11-18 million, take your pick of the exact number. So the executive branch simply cannot deport everyone. It must prioritize the process. The Obama administration has said it will not deport anyone who has been here more than two years and has not committed a subsequent felony. It is deporting about 400,000 people per year, usually illegals who are dangerous felons.

I wish Congress would do its job and appropriate a lot more money for deportations. That’s a decision of the Republican leadership of both houses which, as readers know, loves cheap labor more than border enforcement. It’s really not a constitutional problem for the President to issue a decree which says we are not going to deport four million illegals since the administration could not do so even if it wanted to deport them. Before the decree was issued last year these people know they were not going to be deported and could pretty much live openly in this country.

At yesterday’s Supreme Court argument the Republican-appointed justices (“conservative” and “liberal” are not a good terms to apply to judges because they are political, not judicial philosophies) pressed Solicitor General Verilli about whether the President “changed the law.” He responded that “officially tolerated” would be a better description for these illegals than “legally authorized.” By saying this he answers the argument that the President has changed the Immmigration and Nationality Act by conferring “legal” status on millions of people who are not here legally in defiance of the statute.

It’s hard to see what the difference is. What are the two sides really fighting about? Until and unless Congress decides to appropriate a lot more money to deport a lot more people, the President can use discretion in who to deport and effectively “tolerate” millions of illegals.

The bigger issue is granting work permits. This goes beyond the discretion not to deport. The President does not have statutory power to issue permits for illegals to be lawfully employed. It would be preferable from the standpoint of enforcement if they were not given permits, could not find employment and self-deported. In reality, however, the administration has severely limited workplace enforcement of the immigration laws. So illegal immigrants can basically use fake social security numbers (a federal crime) in order to obtain employment with a very high level of assurance that neither they nor their employers, who are equally culpable in violating the law, will be prosecuted. So the President’s decision to issue non-statutory work permits makes no real difference. But it’s very unseemly to say the least. It would be better if the administration vigorously enforced the immigration laws at the workplace. But again, no president has done so since the law was enacted in 1986 with the brief exception of George W. Bush in a few high-profile raids in 2006-07.

Since there are only eight justices on the Court, and they seem closely divided, there may be a 4-4 tie in this case, which would affirm the Fifth Circuit and enjoin the President’s actions pending a trial on the merits which would not occur until after he leaves office and might even become moot if the next President revokes the order. I very much doubt there are five votes to chastise the President for his executive orders since they do so little.