On immigration, is Michigan on wrong side of history?

Andrew F. Moore

The recent news of a federal judge halting President Barack Obama’s executive action on immigration grows out of a lawsuit filed by 26 states, led by Texas, seeking an injunction against the Department of Homeland Security’s program of deferred action. Under this program two categories of unlawfully present immigrants (those brought in as children, and the parents of U.S. citizens) would not be placed into deportation proceedings and would be authorized to legally work in the U.S. Michigan Attorney General Bill Schuette joined this lawsuit on behalf of the people of Michigan. In adding his name, and ours, Schuette puts us on the wrong side.

Gov. Rick Snyder has announced his desire for Michigan to be an immigrant-friendly state in order to maintain and grow Michigan’s economy. Snyder’s initiative also reflects the reality that Michigan’s population shrank from 2000 until 2010, the only state in the country to see a declining population in that time frame. While Snyder’s initiative specifically focuses on legal immigration in STEM fields, we should support a long term sensible solution to our nation’s undocumented population as well, if our interest is in making Michigan immigrant friendly. Many in that population and their family members present another pool of talent to help Michigan grow. A realistic and holistic policy to promote immigration into our state must recognize this to maximize our opportunities.

President Obama’s choice to grant deferred action is a step in the right direction. It makes a rational decision not to waste precious resources on deporting aliens who are lowest on the priority list. According to a 2012 estimate, there are approximately 120,000 people living in Michigan as undocumented immigrants. An estimated 45,000 will benefit from the deferred action programs.

As a state seeking to promote immigration, our interests are not those of other states in the suit such as Arizona and Alabama, both of which tried injecting themselves into the immigration enforcement business. This earned them reputations of being anti-immigrant and damaged their economies. If anything, Michigan should have joined the 13 states supporting the administration’s actions, recognizing the economic benefit states can receive from the deferred action program.

The plaintiff states assert that the suit is about President Obama engaging in lawless action. But this claim is simply not true. Our immigration laws clearly empower the president to focus our enforcement priorities on those that pose the greatest danger to the U.S. and to implement a policy of deferred action.

The District Court’s decision to temporarily enjoin this program held that the program bestows benefits and therefore likely violates a law requiring opportunity for the public to comment on a new rule. But there is nothing new about the ability of the executive branch to grant work authorization to those in deferred action. The U.S. has appealed the District Court order, asking for an emergency stay.

States unhappy with Obama’s executive action are pursuing this as a legal matter but are really complaining about a policy choice. This dispute is over a set of rational enforcement policies that would benefit Michigan and if we want to be a pro-immigrant state we need to recognize where our interests lie.

Andrew F. Moore is an associate professor of law at the University of Detroit Mercy School of Law.