Up to the Date Information on Presidential Executive Action and Immigration Policy

Presidential Executive Actions and Immigration Policy

Feb 21, 2015

 

            In November President Obama issued an executive action that potentially allows millions of undocumented (i.e. immigrates without proper authority to be in this country) immigrants to temporarily stay in this country.  The Republicans are livid calling Obama a dictator and claiming he has poisoned the “well of cooperation” between the Democrats and Republicans.  Immigration policy is a hot topic of discussion in 2015, so what is the real situation about the executive action?  Is it unconstitutional?  What did the order actually do? And what is Obama’s policy on immigration?

 

Executive actions are official documents that the President uses to manage operations of the Federal Government.  They cover an extremely wide range of subjects from granting December 26, 2014 as a holiday for federal workers or changing a “typo” in a legislative document, to trade with foreign nations and sending troops to West Africa to aid in the ebola epidemic and to establish a task force to study police practices.  There are three types of what’s called executive actions, an “executive order”, a “presidential memorandum” and a “presidential policy directive”.  According to the Office of Legal Counsel which advises the president on the legality of executive actions, all three of these actions hold equal sway, that is, executive actions are binding on future administrations unless explicitly revoked by a future president or are repelled or modified by congress or declared unconstitutional by the courts.  The only difference is that “executive orders” are sequentially numbered and presidential memorandum and policy directives are not. “Memoranda” and “policy directives” are published in the Federal Register, the official proceedings of the US government, but are more difficult to track.  The presidential action on immigration was a “presidential memorandum” not an executive order.

 

Now, despite what Senator Ted Cruz says on Fox News, presidential actions do not represent a usurpation of power. While there is no explicit authority in the Constitution for executive actions; presidents take their authority from clause 5 that requires the president to “take care that the laws be faithfully executed”.  But presidents have been using executive actions since the beginning.  George Washington issued eight orders, what today would be called executive orders, and Abraham Lincoln, issued the most famous one, the “Emancipation Proclamation”.  If you include executive orders and presidential memorandum, President Reagan issued about 472 executive actions, George HW Bush issued about 208,  Clinton 472 (including going to war in Kosovo in 1999), George W 416 and Obama 393, 195 orders and 198 memoranda to date. (plus 28 policy directives which are also not included in any of the other presidential tallies.)  Obama does have the distinction however of using more memorandum than another other president thus making it appear that he is reducing his use of executive orders. (www.usatoday.com/story/news/politics/2014/12/16/obama-presidential-memoranda-executive-orders)

 

So why was executive action on immigration required?  Why didn’t congress address the issue?  In fact in the summer of 2014, the Senate did pass an immigration bill but the house refused to bring the bill to a vote.  The 2014 mid-term elections scared Republican house members away from voting on immigration for fear of losing Hispanic votes.  So the president was left with doing nothing or using executive action.  He chose to take action.

 

What did Obama’s memorandum on immigration actually do?  The memorandum provided additional resources to help law enforcement stem the flow of illegal crossings into the U. S. and placed more emphasize on finding and deporting criminals.  However the most contentious part of the action is that the president’s plan would

-          offers undocumented immigrants, who are parents of U. S. citizens or permanent residents who have been in the U. S. more that 5 years, the opportunity to remain temporarily within the U. S. without fear of deportation and

-          allows those individuals that were brought to the U. S. illegally as children under the age of 16, to avoid  deportation (which is a continuation of Obama 2012 policy).  

In order to qualify for this temporary stay from deportation, the applicant must register, pass a criminal background check and pay their back taxes.  Also the memorandum does not grant citizenship or permanent status but they can seek citizenship through other procedures. This action will permit approximately 4 to 5 million (no one knows for sure) illegal immigrants to remain in the U. S.  

 

THE REPUBLICANS RESPONSE-

 

When the 2015 budget passed congress in January, the house attached an amendment which would remove funding for implementing Obama’s actions on undocumented immigrants.  To get the amendment into law however the Senate would have to pass the amendment by a 60 vote filibuster proof majority (which isn’t going to happen) and the President would have to sign it (which also isn’t going to happen).  Without approved funding the Department of Homeland Security will run out of money by Friday, February 27.

 

In addition, after the president issued the executive action, 26 states filed legal action in Federal District Court in Texas to stop Obama’s immigration action.  Just this past Monday, February 16, the District Judge, Andrew Hansen, placed a stay of the implementation the immigrant actions.  Following this stay, the White House announced it will appeal this discussion to U. S. Circuit Court in New Orleans to overturn Hansen’s decision.  The appeal is scheduled to be presented to the Circuit this Monday, February 23.

 

COMMENTS-

 

The president’s action, again despite what Ted Cruz says, does not give undocumented immigrants amnesty.  The immigrant must still pay his back taxes undergo background checks.  If the person is found to have broken the law, they will be deported.  Additionally no undocumented immigrant automatically becomes a U. S. citizen.  What it does do is to give undocumented immigrants a temporary (3 years) relief from being deported.  At the end on the period, immigrants would have to re-apply.  It also prevents separating parents from their children.  As the president said, separating parents from their children is “not who we are”.

 

Who’s responsible for possible shutdown of DHS?  This evokes the proverbial “chicken or the egg” question, who did what to whom first?  It is unusual to attach an amendment to a budget, but the house did it anyway.  In any regards, if house Republicans are so adamant about immigrant policy why haven’t they passed a comprehensive immigrant plan already?  With ISIS terrorists prowling around the world, now is not the time to be diminishing the strength and security provided by Homeland Security.      

 

Finally, let’s face it, except for native Americans, we are all immigrants.  My great grandparents immigrated in the United States in the mid 1800s from Salzburg, Germany.  Our country has always been a “melting pot”, it’s diversity is what helps give America its exceptional-ism.  Additionally, immigrants, especially Mexicans which we are mainly talking about when we talk about immigration policy, are by-and-large, hard working and law abiding people.  They are not criminals or free-loaders, that many Republicans despise.  When I was working in Mississippi after hurricane Katrina, I saw hundreds of Mexicans working construction helping to rebuild Biloxi and Gulfport.  These people work hard and they don’t get paid large wages.  If you work hard in America and play by the rules, you’re supposed to get ahead and live well, aren’t you?  So why are we so reluctant to share this success with other immigrants?