President Obama’s Executive Action on Immigration: The Right Move, At the Right Time By Kevin D. Finley

President Obama’s Executive Action on Immigration: The Right Move, At the Right Time

By Kevin D. Finley

In November 2014, President Obama took much needed executive action on immigration reform.  He created a new deferred action program that will provide temporary administrative relief and work permits to undocumented immigrants who pass a background check, have lived in the United States for a minimum of five years, and have a child who is a U.S. citizen or legal permanent resident.[1]  As a result, law-abiding immigrants with strong ties to the United States, and who satisfy the application qualifications, will no longer live under the threat of deportation.[2]  The President’s action serves as a tremendous win for the immigrant community and immigration reform advocates.  Most importantly, although this is not a permanent solution, it paves the way for a broader immigration reform when Congress finally decides to act.

The President’s executive action has been met with fierce backlash from Republican congressional members, which is hardly surprising given today’s highly divisive political climate.  Republicans, and Obama antagonist alike, have called into question the President’s authority to create such a policy, and argued that his latest action constitutes an unconstitutional expansion of executive power.  However, I argue that President Obama has not only acted in accordance with his constitutional authority, but has also taken a positive step in the right direction to address an increasingly harsh and dysfunctional immigration system, which destabilizes families and undermines the nation’s economic and security interests.

  1. The President has the legal authority to act.

The United States Constitution provides that it is the role of Congress to make the laws, and the role of the president is to enforce the laws of this country.[3] However, when Congress routinely fails to draft legislation to address critical issues—which it has done over the past 10 years by blocking immigration reform—the president is not mandated to remain idle while the nation suffers.  President Obama realizes that only Congress can provide a permanent solution to fix our broken immigration system.  But rather than allowing the system to further deteriorate, he has initiated action that is completely within his legal authority to make the system more rational, efficient and humane.[4]

President Obama’s executive action is rooted in historical precedent—similar policies have been adopted 39 times by 11 presidents over 60 years[5]—it is also an intelligent enforcement policy.[6]  Presidents from both the Democratic and Republican parties have taken executive actions on immigration over the past decades.  What the Obama administration has done is no different than when former President Reagan allowed children of unauthorized immigrants to stay in the country in 1986 after the legalization program under the Immigration Reform and Control Act of 1986.  And it is similar in scope and context to former President George H.W. Bush’s Family Fairness policy of 1990, which allowed up to 1.5 million spouses and children of those legalized under the 1986 act to stay in the country.[7]

Every law enforcement agency in this country makes daily decisions on which areas to focus their resources.  In the immigration context, a decision to focus on those who have criminal offenses, such as finding and deporting serious criminals and national security threats instead of separating families, is completely consistent with executive authority.[8]  That is what this policy is about: prioritization and the constitutionally grounded principle of prosecutorial discretion.[9]  Moreover, 136 immigration law scholars published a letter earlier in 2014 arguing that President Obama has broad legal authority to “protect individuals or groups from deportation” and that the Constitution backs this authority.[10]

Under the announced Department of Homeland Security directive, each and every low-priority immigrant who applies for deferred action has to register with the government, pass a background check and pay a fee. Having these immigrants register means that the government will know who is here to contribute and will be able to more readily identify who is here to do us harm, thereby enhancing our national security.[11]

  1. The policy is sensible and humane.

Columnist Paul Krugman framed the President’s initiative perfectly: “a simple matter of human decency.”[12]  Most people would agree that we shouldn’t be using taxpayer resources to tear apart families when those resources should be directed at identifying and removing serious criminals.  Additionally, no one believes that we can, or should, try to round up and deport the 11 million undocumented immigrants who currently live in the U.S.  Many of them work, raise families, start businesses, contribute to their communities—and live under constant, unrelenting fear of deportation.  To be clear, it is not U.S. policy to deport all these people.  Rather, Congress only provides the money to deport around 400,000 unauthorized immigrants each year.[13]  It does not require a mathematician to find that 400,000 is not 11 million.  Choices must be made.  And Congress gave the President the power to make those choices.[14]  What is needed is a real comprehensive solution, but with nothing currently in play from Congress, the path forward is obvious: the U.S. government should focus resources, release clear guidance on who law enforcement agencies should target, and inform the immigrants who are not a deportation priority that they can relax, find legal jobs, and live their lives—at least for now.[15]

In addition, by allowing immigrants to work legally means that they can no longer be marginalized and exploited by unscrupulous employers.[16]  Their wages will increase and both they and their employers will be required to pay their full share of taxes.[17]  In turn, benefitting all Americans.

III. Executive action will bring economic benefits to states and the nation and give immigrants the opportunity to take care of themselves.

The Center for American Progress has demonstrated in economic research that the benefits of executive action are clear-cut: Nationally, there will be an increase in payroll taxes of $22.6 billion over five years.[18]  States will also see significant benefits: Colorado, for example, will see a $165 million increase in tax revenues over five years, and Nevada will see an $18 million increase in tax revenues over five years.[19]  Equally important, lifting the threat of deportation and providing work permits to those who qualify will unleash the potential for immigrants to access better jobs and opportunities.[20]  In the long run, this will mean immigrants are better able to take care of themselves and their families.[21]

  1. Congress is broken, and that means the President must do more.

Regardless of political affiliation, most would agree that Congress is increasingly dysfunctional and paralyzed—and is likely to remain that way for some time. This begs the question: is it helpful or harmful for the President to respond to a structural decrease in congressional action with a structural increase in executive action?[22]  Some scholars believe this is one way the system can adjust to gridlock: if Congress does less, the executive will have to do more.[23]  With more executive action, Congress will want to regain their role as the engine of federal action. Likely, this is what president Obama wants.  He has continually called on Congress to preempt his action on immigration by passing a law of its own and it has yet to happen.[24] Unfortunately, this President has faced an unprecedented level of opposition from congressional members for reasons that go beyond the scope of immigration policy. Thus, he has been forced to exercise his executive authority.

Conclusion

Opposition to this common sense administrative action is about politics, not policy or legality.[25]  This is no substitute for legislation.  Only Congress can provide a permanent solution to our nation’s immigration problems, but in the meantime the President has taken an important, necessary and unequivocally legal first step.  President Obama’s executive action is only meant to be a temporary fix, since it does not provide permanent status and can be undone with the stroke of his pen.  But it will set the table for a broader immigration reform because it will bring millions of people out of the shadows and into the legal system as they are vetted during the application process.[26]  The ball is in Congress’ court now, and it remains to be seen if the Republican majority can govern in an inclusive way or whether it will continue obstructing any kind of progress on this issue.[27]

[1] Vanessa Cardenas, 5 Facts to Know About President Obama’s Immigration Announcement, CENTER FOR AMERICAN PROGRESS, (Nov. 21, 2014), https://www.americanprogress.org/issues/immigration/news/2014/11/21/101984/5-facts-to-know-about-president-obamas-immigration-announcement/.

[2] Id.

[3] U.S. CONST art. I § 1; art. II § 3.

[4] Marshall Fitz, Obama is Just Doing His Job, DEBATE CLUB, (Nov. 21, 2014, 11:00 AM), http://www.usnews.com/debate-club/is-obamas-immigration-executive-order-legal/obama-is-just-doing-his-job.

[5]American Immigration Council, Executive Grants of Temporary Immigration of Relief, 1956-Present, Oct. 2014,

http://www.immigrationpolicy.org/sites/default/files/docs/executive_grants_of_temporary_immigration_relief_1956-present_final_4.pdf.

[6] Fitz supra note 4.

[7] Id.

[8] Cardenas supra note 1.

[9] Fitz supra note 4.

[10] Shoba Sibasprahad Wadhia, Executive Authority to Protect Individuals or Groups From Deportation, (Sep. 3, 2014), https://pennstatelaw.psu.edu/_file/Law-Professor-Letter.pdf.

[11] Fitz supra note 4.

[12] Janet Allon, Paul Krugman Destroys All Arguments Against Obama’s Immigration Action, ALTERNET, (Nov. 21, 2014 ), http://www.alternet.org/economy/paul-krugman-destroys-all-arguments-against-obamas-immigration-action.

[13] Ezra Klein, The best arguments for and against, Obama’s executive action on immigration, VOX, (Nov. 21, 2014, 10:50 AM), http://www.vox.com/2014/11/20/7253779/obama-immigration-plan-facts.

[14] Id.

[15] Id.

[16] Fitz supra note 4.

[17] Id.

[18] Cardenas supra note 1.

[19] Id.

[20] Id.

[21] Id.

[22] Klein supra note 13.

[23] Id.

[24] Id.

[25] Fitz supra note 4.

[26] Cardenas supra note 1.

[27] Id.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: