Tag Archives: executive authority

President to Announce Executive Actions on Immigration

19 Nov

Obama

Tomorrow night (Thursday, November 20, 2014) at 8PM, the President of the United States will address the nation to announce what steps his administration intends to take to reform U.S. immigration law and policy.  This announcement represents the culmination of the President’s evolution on his authority as the nation’s chief executive.  In June 2014, when it became clear that the House of Representatives would not take up the immigration reform bill passed by the Senate, the President made a statement that he would take administrative action to ameliorate the harsh effects of our immigration law.  He said that he would take such action by the end of the summer.  However, as summer ended, desperate Democratic Senators in tight re-election races persuaded the President to hold off on his administrative reforms in the hopes that they could retain their seats.  However, the President’s forbearance did not help them- they lost anyway- and the President immediately reaffirmed his intention to “go as far as he can go under the law,” according to his adviser Cecilia Muñoz.  After a week of speculation, the President confirmed today that he will release the details of his immigration reform plans tomorrow night with a televised address from the White House, followed up by a rally in Las Vegas.  Details will not be known until tomorrow, but here is what has been reported most commonly:

  • The President plans to offer deferred action to the foreign national parents of U.S. citizen and permanent resident children who have been here for five years and have been law-abiding.
  • Reports indicate that the administration will make changes to how employment based visas are counted to reduce backlogs for needed workers.
  • The adminsitration will expand DACA to include young people who entered before 2010, as opposed to 2007, and eliminate the upper age limit for DACA.
  • Reports indicate that the plan DOES NOT provide deferred action to the parents of DACA recipients who have no citizen or resident children.
  • The program is reported to end Secure Communities, a disaster of a program.

These are the details that have been reported.  The plan may be different and we will now know until the formal announcements are made.  However, the provisions mentioned above, are the most commonly and consistently reported details.

What is deferred action?

Deferred action is a tool of law enforcement which allows an agency to define its priorities and focus its resources on its priorities.  It is a formal statement by the agency that a particular individual is not an enforcement priority and that the immigration agency will not utilize its limited resources to seek removal of that individual.

Is it residence?

No.  It is a temporary and revokable classification of convenience to the agency.  It does not provide an individual with residence or any promise of future residence.  It can be revoked at the discretion of the agency.  For example, a new administration could choose to eliminate the entire program.

Is this legal?

Almost certainly.  The Immigration & Nationality Act has provided the executive branch with wide latitude as to how it enforces the laws.  There are sizable gaps in the statutes passed by Congress that require the executive agencies to exercise their discretion about how they intend to enforce the immigration laws.   This discretion has been recognized by the Supreme Court in Arizona v. United States, where the Court wrote “A principal feature of the removal system is the broad discretion exercised by immigration officials.  . . .  Federal officials, as an initial matter must decide whether it makes sense to pursue removal at all.”  This broad discretion was also noted by the Supreme Court fifteen years ago in Reno v. America-Arab Anti-Discrimination Committee, where the Court wrote, “At each stage, the Executive has discretion to abandon the endeavor [referring to the removal process] and at the time the Illegal Immigration reform and Immigrant Responsibility Act of 1996 was enacted the INS had been engaging in a regular practice (which had come to be known as ‘deferred action’) of exercising that discretion for humanitarian reasons or simply for its own convenience.”

How are Republicans going to react?

Reactions have ranged from pragmatic to hysterical.  There are voices, not to be underestimated, within the GOP that will declare that the President’s action is an impeachable offense.  Although Speaker of the House told the President that he would be “playing with fire” if he moved ahead with immigration, the Republicans seem genuinely conflicted about how to respond.  There are people within the GOP who believe that the Congress should pass its own legislation on immigration.  There are others who want to shut down the g0overnment or not confirm the President’s nominee for Attorney General to force the President to abandon his plan.

When will these changes take effect?

We don’t know.  They will not take effect overnight and there will be some lead time before the administration is prepared to take applications for deferred action from the up to 5 million people believed to be eligible.

What should I do while we are waiting?

First, don’t get arrested!  Second, gather essential documents, such as passports, matricula cards, birth certificates, marriage certificates, tax, school, medical and work records.  Third, consult with reputable lawyers to discuss issues like removal orders, criminal records or other potentially sensitive issues.

We will keep you informed with reliable and accurate information.

 

Strong Presidents are Great Presidents

17 Feb

Stop deports

On this President’s Day, we wish to add a historical perspective to the robust exercise of executive authority.  The President routinely tells audiences that he does not have the power to act unilaterally on immigration reform.  Frustration and anger have mounted as the toll from deportations rises, and the lost opportunities due to the lack of immigration reform are compiled.  The President’s claim of impotency is in direct conflict with how the right wing of the GOP (is there another wing?) sees the President.  Recently, the House Judiciary Committee held a charade of  hearing on the President’s duty to see that the laws be faithfully executed.  The theory: the President has abdicated his constitutional duty to faithfully execute the law by granting deferred action to childhood arrivals.  Apparently, the theory goes that the President has a duty to remove all deportable individuals and by granting deferred action to a sub-group of the deportable individuals, the President has failed to do his duty.  So, who is right?  Is the President a dictator who ignores the laws?  Or is he an executive with a limited vision of his authority, doomed to mediocrity?  That answer remains to be seen, in our opinion.  It will depend on whether the President follows the example of those presidents who have monuments on the National Mall and across the capital or those who are reviled, ignored and forgotten.  For a president as historic as Obama, we hope that he embraces a more robust view of Presidential power.

The earliest President who truly revolutionized the role of the Chief Executive was Andrew Jackson.  When Jackson took office, he viewed himself as the only national andrew jackson kingembodiment of the people’s will.  He scandalized the country by making arguments to the people in support of his policy decisions.  In addition, he broke tradition by vetoing pieces of legislation that he disagreed with.  Previously, Presidents would only veto legislation that they thought unconstitutional.  Jackson was the first President to veto legislation for the plain reason that he was opposed to it.  In addition, when South Carolina asserted that it could nullify a federal law that it did not like, Jackson stood for the not-yet-clear proposition that federal law was supreme and a state could not pick and choose which federal laws it wished to follow.  Jackson’s position on nullification provided historical precedent when another President was faced with rebellious southerners.

Before taking office, Abraham Lincoln was confronted with the “secession” of South Carolina and several other states.  Lincoln refused to accept that a state could secede and decided that his principal obligation was to preserve the Union.  Abraham_Lincoln_head_on_shoulders_needlepointWhen Lincoln called up 75,000 troops in the wake of the Southern attack on Fort Sumter, several other states, including Virginia, seceded. Lincoln arrested secessionist deputies in Maryland and advocated for a strenuous war against the rebellious states.  Lincoln exerted his powers as Commander-in-Chief to free the slaves in “territories in rebellion against U.S. authority” in the Emancipation Proclamation.  Just to be clear: Lincoln dissolved certain “property” rights in nearly half the country.

Franklin Roosevelt determined that the circumstances of the Great Depression required an energetic response by the federal government.  However, he found that the Supreme Court proved to be a formidable obstacle.  After the Supreme Court issued a series of opinions striking down New Deal federal legislation on matters previously considered solely the domain of the state as well as progressive state legislation, such as maximum hours and minimum wage laws, Roosevelt came up with the preposterous idea of adding additional justices to the Supreme Court.  After all, where is it written in the Constitution that there need to be 9 justices?  Roosevelt threatened to add additional justices– to pack the court— to get his agenda past the Court.  The crisis was averted when Justice Owen Roberts, a reliable Supreme Court vote against the New Deal agenda, changed his opinion and joined a group of justices supportive fdr2of the President giving Roosevelt a 5-4 win which upheld a Washington state minimum wage law.  Roberts’ switch and the retirement of Justice Willis Van Devanter provided Roosevelt with a solid majority to uphold the New Deal legislation.  The New Deal legislation significantly expanded federal authority over tremendous swaths of economic and commercial activity.

Each of these Presidents was derided during their terms as being despots, dictators, and wannabe kings.  A faction of the country called them tyrants bent on reshaping the country in some perverse way.  Yet today, each is honored with a place on our National Mall (True, Jackson is not on the mall- but his equestrian statute is right in front of the White House for the President to see every day.)  Each of these Presidents is understood as being an essential part of this country’s progress and their allegedly improper power grabs have been revalidated generation after generation.  This is not to say that they receive universal acclaim; there are plenty of holdouts who are anti-Lincoln for the Civil War and the modern day GOP and its court appointees are determined to undo the legacy of the New Deal.  Yet, when historians rank the best Presidents, all three will make that list.  They are on the list because they responded with energy to the crises facing the country.  In doing so, they expanded the power of the Presidency (without creating tyranny!) and pushed the country forward.

roosevelt-memorial-washington-dc

Contrast Lincoln with his predecessor James Buchanan.  Believing he could do nothing about secession or slavery, Buchanan allowed guerrilla warfare to rage in Kansas and Missouri through much of his term.  Buchanan felt he had no power to stop secession.  In other words, that the President of the United States was powerless to stop the dissolution of the union.  Little wonder that there is no monument to Buchanan and he routinely fills out the bottom slot when historians rank the Presidents.

All this is to say that history reveres Presidents who have a dynamic view of their power.  It has now become clear that Congress has no intention of taking up any meaningful immigration reform. This is despite an acknowledged crisis.  Lincoln-Memorial-4Families are being torn apart, the administration is closing in on 2 million deportations, businesses can not get the workers they need, and national security and public safety are compromised due to the failure of Congress to act on immigration reform.  It is time for the President to be worthy of the slurs hurled at him by the know-nothings in Congress.  It is time for the President to make a bold claim of Presidential authority and place a hold on all bust the most serious removals.  History will reward him if he does.  Lincoln or Buchanan?  The choice is the President’s.Andrew_Jackson_(2873018869)