On November 20, 2014, the President announced a series of executive actions in order to address our broken immigration system. This series of executive actions entails a broad array of initiatives, including expanding upon the Deferred Action for Childhood Arrivals (DACA) program, the establishment of the Deferred Action for Parental Accountability (DAPA) program, the expansion of usage of provisional waivers, and a series of initiatives which aim to improve, clarify and modernize immigrant/nonimmigrant programs and promote education and awareness of the naturalization process . This series of initiatives have not yet been implemented. They also do not aim to permanently establish immigration law; rather, it is a temporary solution until a comprehensive reform is passed by Congress and signed by the President; as the President stated the night he announced his actions: "And to those members of Congress who question my authority to make our immigration system work better, or question the wisdom of me acting where Congress has failed, I have one answer: Pass a bill" .
Nonetheless, the President's actions have stirred up much disapproval (as is to be expected), with people claiming the actions as unconstitutional and, as of the time I'm writing this article, a coalition of 17 states intending to "sue" the Obama administration . Arguments against the President claim that his unilateral action is an unprecedented seizure of power, are unconstitutional, and are even contradictory, citing past times where the President stated he would not and could not constitutionally change immigration law. Others anticipate the legal, political and demographic consequences of the President's actions with reproachfulness. Just as many reflect on how few people approve of these initiatives. Ultimately, the President's actions have sparked much controversy, and people are trying to make sense of the whole ordeal, all the while keep up with the latest political retaliations.
I will address all of these concerns and accusations within the contents of this post, as well as provide my own take on the situation. Prior to doing so, however, I must organize this into something that will actually make sense to people who aren't familiar with the issue. This post will order as such:
|"We've got some shit to clear up." - President Barack Obama, Dec. 3 [Joke]|
2: The case for the legality and suitability behind the President's actions.
3: The details of the initiatives set forth by the President's actions
4: The misconceptions and arguments against the President's actions.
5: The predicted/suggested actions Republicans in Congress will/should take.
This post will not be comprehensive. It will be a summation of what I personally believe to be the most important points to bring up regarding the issue in a way that sheds light on the current situation and may help people come to their own conclusions. Likewise, this is not definitively the 'answer' to the issue. This is just my take, which will naturally have its own flaws and shortcomings. I do not expect to end any debate on this issue, and I hardly expect anyone to completely change their mind; however, I have seen many people slowly become more sympathetic to the President's initiatives after healing all the details that seem to elude the common public/media limelight. I anticipate this shall be no different, and am hoping to hear from people who have benefited from this post.
I welcome discussion and critique. Please remain cordial and read the Comment Guidelines before continuing.
Background And History
As of 2013, the Obama administration reached a record number of 438,421 undocumented immigrants deported . Many see this as a good thing, but many bad as well. To me, this is a reflection of flawed immigration policy. It's a desperate effort to reconcile the growing number of undocumented immigrants in the United States, the public and political unrest in response, and the lack of any comprehensive immigration reform being passed by Congress. Buchanan would call it a "State of Emergency," and I might agree, but for different reasons. The Obama administration's record deportations has resulted in major constituency disappointment, with the Congressional Hispanic Caucus criticizing the administration's actions and the majority of the Hispanic electorate expressing disapproval . While some people might not appreciate this sentiment, it is of political importance. Any President, Obama not excluded, must gain 36-40% of the Hispanic vote in order to win. By winning that segment, the President owes a lot of responsibility for catering to his Hispanic constituents. Not doing so would lead to a devastation of the Democratic Party's success in the next presidential election. I will touch up on why and how this applies to the Republican Party as well later on.
All things considered, immigration policy is a national issue. It is a source of division among the American public and represents a pressing issue regarding how we handle our international constituencies as well as the electorate at home. Playing the wrong cards can lead to a dramatic failure for the party held responsible by the public at large. That said, reform is urgent, and attempts have not succeeded in recent years.
|It didn't work.|
Complaints about this move were made by many who opposed the Obama administration's policies on immigration, and the criticisms were similar to what we see today with the issue in question. After the President stated that he would not try to change immigration law, many supposed that that's exactly what he did. Many thus claimed illegality, hypocrisy, attempts to circumvent the law-making process; the Arizona state governor even passed his own executive order in response . Former Secretary of Homeland Security Janet Napolitano sent out a memo to immigration, borders and customs officials stating to exercise their enforcement discretion on behalf of individuals who met the criteria set out by the DACA. The same exercise of selective enforcement is being used now to justify the President's executive actions.
We will get to this in the critique section; for now, it is only important to note that this up and back is not a recent phenomenon. Dissatisfaction with the Obama administration's immigration policy and means of implementing it are engrained in his presidency, and this comes from both the left and right. The legality of the DACA is not my concern, although this academic consensus (from personal experience and research) is that it was within the confines of the law. This post is only addressing the concerns of legality over the President's recent executive actions, which is the case I will make in the next segment.
Legality Of The President's Executive Actions
|Break open the books!|
So the question stands, are the President's actions legally defensible? My answer is yes. One can use both a theoretical yet pragmatic basis for this argument, or a literal, legal one. I will begin with presidential theory.
The history of the President's unilateral action in policy making is not recent. The President has always acted unilaterally; one only needs to look at the Louisiana Purchase, emancipation of slaves, Japanese internment, military desegregation, affirmative action or regulatory review to get the most well-known and understood examples of this . The reason for this is that the unilateral powers of the presidency are not explicitly stated in the formal structure of the American government, which has led most people to associate the presidency with only the expressed powers granted to it by the Constitution. This lack of specification allows the President to act in ways that he assumes powers which are not explicitly granted to him, but are abdicated by the other branches of government in times where broad delegations of authority may be seen as preferable by lawmakers. Situations where this may happen include when their policy goals are consistent with the president's, when they are dependent on the experience/expertise of the administration, when they find it fashionable or preferable to shift responsibility and accountability to the executive, when Congress fails to come up with any specific preferences for policy action, when decent policy is impossible to design without assigning broad powers to the executive, or when certain policies require the speed, flexibility and secrecy that can only be found in unilateral presidential action in order to be successful.
The latter is exactly what we see, for example, when we look at presidential war powers. Congress, despite having made efforts in the past to provide clear outlines for presidential war powers and under what situations they require deference to Congressional authorization , has slowly abdicated powers greatly to the president. At the same time that House Speaker John Boehner is stating that the President should seek Congressional authorization before initiating military action against ISIS, Congress is failing to come to any agreement on authorization . The reason is because Congress does not want such liabilities to be returned to them, and despite the claims by Republican leaders, they would rather him simply act on his own. Besides that point, the President has historically acted unilaterally in his exercise of war powers .
Why are war powers relevant to this discussion? This is part of a consistent tug-o'-war between the branches of government for unilateral power which is inherently a part of the checks and balances system. Unilateral presidential action can be considered a theoretically viable, legal and preferable course of action in current times. One might disagree with the current imperative, but it can be argued on this basis that the President's executive actions are justifiable in accordance with the way the institutional presidency operates. This is the theoretical argument. Now we will turn to the legal one.
Here, we will return back to the concept of enforcement discretion. Enforcement discretion is the power of government officials to choose whether or how to punish an individual who has violated the law. Enforcement discretion is implemented most often for practical reasons. The most commonly used example of this is traffic violations, specifically speeding. Many people drive over the speed limit, and this goes to such an extent that police officers would find it impossible to ticket every individual who commits this particular traffic violation. Thus it behooves a police officer to only go after individuals who commit it to the most dangerous extent in the most extreme examples of reckless driving. Enforcement discretion exists in this way - where action is taken against some individuals and not others - or in such a way that enforcement of the law is only applied to some parts of it, but not others. In this case, we have millions of undocumented immigrants and a broken immigration system which cannot address the problem; thus, it may be reasonable for the DHS to exercise enforcement discretion in executive action. But is this legally justifiable? Again, the answer is (mostly) yes.
With the number of people in the United States, all immigration violations cannot be addressed or prosecuted with the limited resources available. In such situations, going by historical precedent dating back as early as 1975, the Secretary of Homeland Security may defer to enforcement discretion . Said precedents were made in the context of the former Immigration and Naturalization Service (INS), but these powers were transferred to the DHS in the Homeland Security Act of 2002. As such, since these powers were transferred to the DHS - an executive agency - Congress also grants permission to the DHS to take discretionary action in the prosecution of the law, which is rooted in the President's constitutional duty to "take Care that the Laws be faithfully executed" , which reflects a recognition that "faithful" execution of the law does not necessarily entail "act[ing] against each technical violation of the statute" that the agency is charged with enforcing , consistent with the conditions of enforcement discretion. In the absence of legislative direction by Congress, an agency's non-enforcement determination is "a special province of the Executive."
There are many legal conditions and precedents for the application of enforcement discretion and non-enforcement determination as it applies to immigration law, and clarifications on how deferred action differs from other enforcement discretion actions, but I won't get into that here. The DHS released a memorandum opinion on the matter to display the legal justification for the President's executive actions, which provides more detail . Suffice it to say, however, that there exists clear legal justification for the Executive to implement enforcement discretion when treating immigration law. This justification covers the DHS's proposed policies to prioritize removal of certain groups of illegal aliens in the United States as well as its proposed deferred action program for parents of U.S. citizens and legal permanent residents There was actually another proposed deferred action, which would extend eligibility to parents of DACA recipients; however, this deferred action differed from others and did not seem to pursue precedents set by Congress, thus the DHS did not find it permissible under enforcement discretion. They did retain their authority, however, to issue such eligibility on an ad hoc basis.
Executive Actions on Immigration
So now we know that the executive actions were legally justifiable. But what were they? The President's wording in his address to the American public didn't exactly clarify what the details were of the policy initiatives being set out. One thing I would like to comment on approvingly, however, is the President's use of Scripture, which conservatives criticized but were not overwhelmingly in agreement on to what extent they disliked it . It was a bold move which got a lot of attention, both approving and disapproving, from the public, but it was a genius one. Ed Henry is right that it was political salesmanship; but unlike Henry, I'm not stating that as a bad thing. It reveals how meticulous Obama and his speech writers were in paying attention to the precise wording of his public statement. I give kudos to him for that.
Getting back on topic, what most people probably aren't familiar with are the specific actions set out by these initiatives. I'm going to cover those here, but if you want the same summary from a different source, please see the first link under "Sources" at the bottom.
The first initiative expands upon the population which is eligible for deportation relief under the DACA. It allows individuals born prior to June 15, 1981 to apply for DACA eligibility provided they meet all of the requirements. These requirements are that they must have had continuous residence in the United States since January 1, 2010 - an extension of the previous June 15, 2007, must not be an enforcement prior, either be the parent of a U.S. citizen or lawful permanent resident or be an individual who arrived in the U.S. prior to turning 16 years old, and there must not be present any factors which would make grant of deferred action inappropriate . Applications are not being accepted yet and will not be for several months. This also encompasses the second initiative, which I will not detail separately to save time.
The third initiative expands the provisional waiver program of 2013 to sons and daughters of U.S. citizens or the spouses, sons or daughters of lawful permanent residents. It also plans to clarify the meaning of the "extreme hardship" standard required for a waiver, which has been somewhat ambiguous and problematic up until now. Said clarification has not been made yet, but it is suggested to consider factors such as "family ties to the United States and the country of removal, conditions in the country of removal, the age of the U.S. citizen or permanent resident spouse or parent, the length of residence in the United States, relevant medical and mental health conditions, financial hardships, and educational hardships" .
The fourth initiative seeks to "modernize, improve and clarify immigrant and nonimmigrant programs to grow our economy and create jobs." I will also not review this initiative in full detail as it's rather long. The fifth and final initiative aims to promote the naturalization process by promoting citizenship education and public awareness for lawful permanent residents, allowing applicants to use credit cards to pay for the application fee, and assessing the potential for partial fee waivers in the next biennial fee study. In addition to these initiatives, the White House also notes that recent border crosses will be a deportation priority, and that you will not qualify if you commit fraud.
|Out of context, but appropriate. He should be a lawmaker.|
Now that we have reviewed what the actions entail, we should address what misconceptions people have of them and the reasons people don't like them. These include issues of legal context and precedence, demographics, etc. Again, this will not be comprehensive nor exhaustive. I will only be rebutting the misconceptions and arguments I have personally heard and feel important to address.
A big one that I have to address constantly is the claim that the President is granting amnesty. The term "amnesty" has been applied to just about every action the President has taken in immigration policy. It just isn't the case.
Amnesty, by definition, is the pardoning of a group or class of individuals who have committed a crime and are subject to trial but have not yet been convicted. It can be described as "giving something for nothing," where the party in question goes without punishment and receives the pardon without taking any action on their own. This is, even admitted among conservative media, not what Obama's immigration initiatives are . Setting aside the fact that the applicants must apply, pass background checks and meet other qualifications, they also have to pay an application fee of $465. This is inconsistent with what amnesty implies by definition. The term is used to describe immigration policy in order to invoke rejection and fear from the American public.
This misconception may not be intended, but I see consistent confusion among media outlets between the terms "executive action" and "executive order." This may not seem like an important point to cover, but there is a very clear distinction between the two.
An executive action is an opinion or nonbinding statement made by the President usually as a suggestion to Congress or his agencies to take action. Anything the President says can, in one way or another, be defined as an "executive action" of sorts, because it is just some proposal for action by the Executive. As stated, these are not legally binding, although it should be noted that the word of the President carries a great amount of weight even if it isn't de facto legally binding.
An executive order is different. An executive order is a legally binding mandate ordered by the President and published in Federal Register, which holds the weight of law. It can be repealed by the courts or Congress or by another president, but it is law until such repeal. As such, we can tell clearly by the difference between "executive action" and "executive order" whether or not the President has actually changed or created immigration law.
Executive Action is Inconsistent With Public Will
Some argue that the actions taken by the President are unjustifiable in the sense that the American public rejects it, and that the exercise of enforcement discretion in this scenario is not consistent with that of the public will. Firstly, I have not seen in any legal document that enforcement discretion must consider public approval, especially in the case of immigration law. I would be happy to hear from anyone who has such documentation.
|That's not how it works, America. Well, not necessarily...|
The thing is, however, that it doesn't even matter. While it's important to consider public opinion in politics, especially in America, the President's executive actions can be seen as a response to years of inaction by Congress. The people may seem to prefer that the President negotiate with Congress on immigration reform, and so his actions may actually promote that and be consistent with public approval. All in all, however, this is a pragmatic issue and cannot be held back by considerations of whether or not the majority of Americans are on board with this. The institutional presidency warrants actions which may not be consistent with public opinion, and this cannot be helped in most cases, including this one.
Anchor Babies And Immigrant Youth
I personally love these two.
As is tradition, it is suggested by some that these recent actions the President has taken will increase the number of immigrants coming into the United States. The grounds for this are that the recent actions grant citizenship to parents of United States children, and thus further promote "anchor babies." Anchor babies are babies who are born in the United States to undocumented immigrants, intentionally so that the baby will automatically gain citizenship in accordance with the Constitution, and the parents will be automatically granted a pathway to citizenship.
The problem with this is that parents or guardians are only eligible, as stated earlier, if their child is a U.S. citizen or permanent resident who has continuously resided in the country since January 1, 2010. This eliminates any possibility for parents to have their children now, since they will not be eligible; in fact, they will be prioritized by the new executive actions. The same applies for young immigrants who come to the United States now after the President's statements have been made public.
One might make the counterargument that these immigrants will be given the impression that if they act now, the date will be extended again in the future and make them eligible. I will admit, at a visceral level this sounds plausible. Intuitively it makes sense that people will see this as a slippery slope, and in fact there may be some noise near the border (mostly by groups who would benefit from it, i.e. smugglers) that this will be the case; however, intellectually it would be hard to back up with evidence. Most people, in my experiences, do not consider these types of things when changing locations, even within the U.S. Most people are unfamiliar with how the law affects them, and so I do not see this (intellectually) as a huge possibility, although my gut feeling will always tell me there is some truth to the statement.
The President Has Set Legal Precedent
This will be the last argument I address in the post, although I encourage more (in moderation) in the comments section. Opponents of the President's executive actions argue that the President has now set a legal precedent, by acting under enforcement discretion, for the government to do anything it wants in enforcing the law, undermining the rule of law . This is another slippery slope argument that I like to address, because it doesn't make any sense. As established, there are clear legal precedents in the context of immigration law and the execution of the law by the Executive that justify and provide legal basis for the President's actions. These do not apply universally to all aspects of the law, and does not suggest the undermining of the rule of law any more than does the traditional example of enforcement discretion of traffic violations. We have this discretion for a reason, and exercising it does not imply that pardons or excuses will be given to all people for all reasons.
What Should Republicans Do?
This is the most crucial question to be asked regarding the President's executive actions. What should Republicans do in response to the President's initiatives? It's a tough decision to make, and here is why.
As stated earlier, winning the presidency is contingent upon gaining 36-40% of the Hispanic vote. This means that no matter what, Republicans must pander to their Hispanic constituencies if they want to win the next presidential elections. This is problematic given the current state of affairs. In 2013, 89% of Hispanic voters supported a pathway to citizenship for unauthorized immigrants meeting certain requirements , but specifically 55% stated that deportation relief is their primary concern . Republicans are now faced with the challenge of coming up with a comprehensive immigration reform to replace the President's executive actions.
But opposing "amnesty" hasn't stopped Republicans in the past, so why would it now? This is where the tangled web is woven. Consider what I think are the three primary reasons conservatives oppose granting citizenship to unauthorized immigrants:
1: Depression of wages.
2: It's not fair.
3: Change of voter demographics.
|- John Boehner, circa right now -|
So what is the Republicans' best course of action? I think the midterm elections offer some interesting predictions for this. Although the Republicans are traditionally a defensive, obstructionist party, especially when it comes to the Obama administration, inaction now will lead to complete loss of constituency support for the next elections. The new Republicans coming into the Senate, however, are mostly coming from states which voted for President Obama in 2012 . Why is this the case? Because these states have large independent electorates. Pandering to the conservative electorate, then, will not do as much good as Republicans would want for these new Senators. They have to cater to their independent constituencies now, which means they will want to steer clear from any hard-right solutions to immigration reform, or the possibility of a government shutdown . Likewise, with the new support Obama has from Hispanics, the will want to create legislation which can compete with President Obama's executive actions in appeal.
The conclusions to be drawn here are numerous. The President's executive actions are legally and practically defensible, and they offer some good (but temporary) solutions to our broken immigration system. Nonetheless, many will oppose these actions as being illegal, unconstitutional, monarchical, etc. The good news however is that we have some good pressure for the new Republican majority Congress to write up legislation to compete with President Obama and reaffirm Congressional debate and negotiations over this issue. Perhaps we will see an end to Congressional gridlock on immigration reform as a result of this. Perhaps not.
All I can say is that this will be very, very interesting to observe in the future.
Thank you all for reading, and I'll see you all next time!
 Executive Actions on Immigration - USCIS
 Remarks by the President in Address to the Nation on Immigration - Office of the Press Secretary
 Obama's Executive Action 'Not Constitutional' - CBN News
 Texas Leads 17 States Suing Obama Administration Over Immigration Action - CBS News
 U.S. deportations of immigrants reach record high in 2013 - Pew Research Center
 Under pressure, Obama calls for immigration-enforcement review - The Washington Post
 Americans split on deportations as Latinos press Obama on issue - Pew Research Center
 S.729 - Dream Act of 2009 - 111th Congress
 House OKs bill aimed at illegal youth immigrants - MSNBC
 Obama administration to stop deporting some young illegal immigrants - CNN
 Arizona Responds to Deferred Action Program by Blocking Privileges for DREAMers - National Law Review
 Jason Chaffetz Confronts DHS Secretary Johnson On Immigration: "Did Obama Change The Law?" - Real Clear Politics
 Unilateral Action and Presidential Power: A Theory - Moe & Howell
 War Powers Resolution - Yale Law School
 Boehner: 'I'd Bring The Congress Back' If Obama Asks For War Authorization - Huffington Post
 Congress in No Rush to Return for ISIS War Authorization - Roll Call
 "Generalissimo of the Nation:" War Making and the Presidency in the Early Republic - Adler
 Exercising Prosecutorial Discretion - Department of Homeland Security; see, Immigration and Naturalization Service, Operation Instructions § 103.1(a)(1)(ii)(1975)
 U.S. Constitution Article II § 3
 Heckler v Chaney, 470 U.S. 821, 831
 The Department of Homeland Security's Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others - Department of Homeland Security
 Bill O'Reilly Has To Call Bullsh*t On Ed Henry's Obama Immigration Speech Attack - The Daily Banter
 Five Things to Know About How President Obama's Executive Action Impacts Undocumented Immigrants - The White House Blog
 Expansion of the Provisional Waiver Program - Department of Homeland Security
 Megyn Kelly Admits Obama's Executive Action Isn't Amnesty, Fox News And Republicans Purposefully Lie - Addicting Info
 NBC/WSJ Poll: Nearly Half Oppose Executive Action on Immigration - NBC
 On heels of immigration executive action, Obama's approval rating among Latinos rises sharply - Fox News
 How Much Support Does Obama Have On Immigration? - Huffington Post
 Boehner: 'We Will Not Stand Idly By As President Undermines The Rule Of Law' - NPR
 Views of Current Immigration Policy Proposals - Pew Research Center
 Relief from Deportation or Pathway to Citizenship? - Pew Research Center
 Immigration, Offshoring And American Jobs - Ottaviano et al.
 Riding Wave of Discontent, G.O.P. Takes Senate - New York Times
 Who's Dreaming Now? Obama Opponents Do A Weapons Check On Immigration - NPR
- Immigration Action Key Facts - DHS
- The difference between executive actions and executive orders.