Obama’s Unprecedented Immigration Action Also Expands the Welfare State

By Hans Bader | November 26, 2014 | 11:23am EST

Obama signing an executive order. (AP Photo/Ron Edmonds, File)

President Obama’s decision last week to offer temporary legal status to five million illegal aliens has been assailed as a violation of the rule of law, which is not surprising given that he himself once admitted it would be illegal for him to do, and the legality of what he just did was once questioned by his Justice Department’s own Office of Legal Counsel.  (Even newspapers sympathetic to an amnesty have  expressed concern about the legality and propriety of his action yesterday, including the staunchly pro-immigration Wall Street Journal, and the Washington Post, which supports amnesty legislation, and is so liberal that it has not endorsed a Republican for President since 1952).

But discussions of its legality have obscured the fact that Obama’s action is primarily about expanding the welfare state, not reducing deportations. It’s about giving illegal immigrants access to taxpayer subsidies they previously were denied, like the Earned Income Tax Credit, at a cost of thousands of dollars for each household. It will cost taxpayers billions of dollars. Thanks to Obama’s action last week, they can now apparently qualify for the EITC.  (See “Obama: US Taxpayers Must Pay For Illegals’ Children,” Daily Caller, Nov. 21). And they can even claim it retroactively. See “IRS: illegal aliens can qualify for earned income tax credit.”

Even the libertarian Cato Institute, which passionately supports expanded immigration, thinks it will cost taxpayers. Hundreds of thousands of the illegal aliens covered by Obama’s action will now qualify for the EITC, which gives more to poor working adults who have children. A single mother of three earning $17,000 could get back as much as $6,000 to help her take care of her children, for example, according to a Tax Policy Center chart.  “I fear the long-run impact on overall fiscal policy will be negative,” said Dan Mitchell, a budget expert at Cato institute, told Politico, citing the negative “effect when you look at the impact of amnesty on tax revenues and the burden of government spending.” Even prior to this action, illegal aliens were already getting at least $4 billion per year in refundable child tax credits, according to the IRS’s Inspector General and others.

My wife and other family members are immigrants, and I have family overseas, and we are disturbed by this unconstitutional executive branch action that violates the separation of powers. As FactCheck.Org notes in “Obama’s Immigration Amnesia,” Obama himself once conceded that doing what he did yesterday would be unconstitutional, since he is “not a king” and “not the emperor,” in response to questions about stopping deportations and providing temporary legal status to undocumented workers.  As he admitted then, “With respect to the notion that I can just suspend deportations through executive order, that’s just not the case, because there are laws on the books that Congress has passed,” and “The executive branch’s job is to enforce and implement those laws.” “My job in the executive branch is supposed to be to carry out the laws that are passed.”

Obama’s action yesterday officially exempts millions from deportation, but almost all of those people weren’t going to be deported anyway even before this order, since people who make it past the border seldom get deported if they don’t commit crimes.  Most “deportations” these days are of people caught at the border (as Homeland Secretary Jeh Johnson has admitted), not people who have already made it deep inside the country.

Although illegal immigrants covered by Obama’s action will be able to access many kinds of welfare built into the tax code, they will not be eligible for other forms of welfare or direct cash assistance that are explicitly denominated as welfare, like payments under TANF.  The Obama administration has also claimed that they will not be eligible for subsidies to purchase health insurance policies on the exchanges created by the 2010 healthcare law.

Hans Bader is a senior attorney at the Competitive Enterprise Institute.

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