“Our immigration system is broken, but it’s up to Congress to fix it”

My Cato colleague Ilya Shapiro writes that whatever view one may take of the underlying issues of immigration policy, a Texas federal court was right to find that President Obama’s Deferred Action for Parents of Americans and Lawful Permanent Residents executive action (DAPA) exceeded his statutory powers. More: Josh Blackman, Memeorandum.


  • The United States already takes in more immigrants, by far every year than any other country in the world. How many do we actually need?

    The system is only “broken” to people on extreme ends of the debate: those who want open borders entirely, and those who want closed borders entirely.

  • I have spoken to many persons who are in this country completely legally (e.g., they have married an American or been transferred here by a multinational employer) and are intent on pursuing citizenship, permanent residency, or other status through legal means. Their descriptions of bureaucratic snafus and legal expense certainly bring the word “broken” to mind.

    Of course a wide range of views are welcome here, including the view that U.S. immigration laws are currently working fine.

    • My own spouse is an immigrant, btw. The process with her was not quick, but it was a lot easier than I expected. I only know my own anecdotal example, but I’m sure that there are a lot of glitches, as there are in any bureaucracy.

      You have a product (US green card) that is in very high demand, and many different avenues of getting it. I suspect that one of the reasons the system appears “broken” is because so many people try to game the system by making false asylum claims, entering into sham marriages, or having children on this side of the border, giving them a legal “anchor” into this country.

      Even if we streamlined the process with “comprehensive immigration reform”, there will still be long lines of people trying to get in. I have a feeling that immigration advocates will still call it “broken” unless we essentially open the borders entirely.

  • I would not characterize the reason that Judge Hanen issued the injunction as “exceeding Obama’s statutory powers.” Rather, the bulk (and holding) of the Opinion and Order devoted to the injunction is that there was a gross violation of the Administrative Procedure Act concerning lack of notice and comment rule-making.

    The issues concerning the non-delegation doctrine, although heavily analyzed, are dicta only and must wait for anther day. The non-delegation doctrine in administrative law has been severely watered down over the years. It is making a comeback in State cases, the most recent of which was the striking down of Bloomberg’s large sugared soft drink ban in New York City. But in federal cases, the Supreme Court has given lots of authority to the “Fourth Branch” independent of Congress.

    Finally, lawmakers that state that Obama’s immigration policy has been struck down as unconstitutional, either did not read the Opinion and Order, or chose to express it in words that would sit well with their constituents.

    Courts tend not to rule on things that they don’t have to. This is especially true when they are asked to declare something unconstitutional. If there is another basis, they will use it and skirt the constitutional question. Similarly, courts tend not to reach substantive issues of statutory violation when the case can be decided on violation of procedure.

  • Are you arguing that this is a catch-22 for the modern era? Only Congress can change the system. Congress cannot change the system (because Congress is dysfunctional). So, we are left with a broken system that no-one can fix.

  • Allan, you assume 1: the system is broken; 2: the fact that Congress does not fix the problem (if it exists) means they cannot. This is because the immigration system does not operate the way you think it does.

    If one assumes that the system is working the way it is supposed to, there s no need to fix it. If one assumes that Congress is satisfied with a broken system, then it can fix the problem, but does not.

    The fact that a lot of people insist the system is broken, does not mean it is. A lot of people think aliens are beaming microwave into their heads and Congress does nothing about that either.

    Finally, should Congress get off its collective butt and fix th problem, a lot of people will complain that the new system is broken because it doesn’t operate the way they want it to.


    PS I happen to think the immigration system is broken. I just think Congress likes it that way.