News Update - November 18, 2014

The President's Play on Immigration - Big or Small or Not at All and Expected Consequences

Branding and seizing the narrative on immigration is the obvious Republican Party plan. Going small by initiating legislation including emphasis on border protection, expansions of nonimmigrant and immigrant worker programs including farm workers, a restrictive DREAM Act, and further limitations on family-based visas, is its interest. The plan if put into effect would be designed to appease the American public which wishes immigration reform, the anti-immigrant conservatives in their party, and their voting bases back home, while largely neutralizing Hispanic and other ethnic minorities for 2016.

The Administration proposes to throw a monkey wrench into the works by President Obama’s using executive action to stop the enforcement of removal for up to 5 million undocumented immigrants. The plan would either go small or large. Calculations as reported by news organizations are that the presidential announcement would include an expansion of the Deferred Action on Childhood Arrivals (DACA) program and give relief to certain parents of U. S. citizens or permanent resident children.

700,000 – Expansion of the DACA program to include those entering the U. S. under age 18 by June 2011 and eliminating the age limit of 30.
2.5 million – Relief to the parents of U. S. citizen or permanent resident children if the parents have been in the country for 10 years.
3.3 million – Relief to the same parents if they have been in the country for 5 years.
3.4 million – Relief to the same parents here for 5 years, but also including parents of DACA eligible children.

In adding the 700,000 increased DACA eligible to the top amount of estimated eligible parents (3.4 million), the number is approximately 4.1 million. The 5 million takes into account the estimated 1.2 million eligible for the current DACA program, which has so far attracted approximately 600,000 applicants. It does not, however, include the big wish of fervent pro-immigration activists – all those who would be eligible under S. 744, an estimated 8.7 million. (S. 744 is the comprehensive immigration reform (CIR) legislation that passed the Senate in 2013, has since been bottled up in the House, and will expire in December).
The White House is expected to announce the executive action at any time between this week and December.

The President can expect a furious Republican response, including suits in federal court with possible Supreme Court resolution, efforts to impeach him, tagging on of language to outlaw its funding onto essential bits of legislation, and other legislative efforts to derail or restrict the number of eligible persons. Just a look at the Republican charge at the Affordable Care Act (ACA) gives an idea of what is in store down the road. The charge will likely be fueled and even amped up by Republican fury that the President is ignoring the mandate of the midterm elections and by their ability to cause more havoc through majorities in both houses of Congress.

He has been warned by both the incoming Senate majority leader Mitch McConnell (R-Ky.) and House Speaker John Boehner (R-OH) that the executive action will poison the well, wave the red flag, and destroy any chance of future immigration legislation.

So in the face of expected consequences, should he chance the Republicans ruining the rest of his presidency over this as they have threatened to do? Should he go big or small if he goes at all? And what should be the timing if he does it?

With a sizable majority of Republicans in both houses of Congress, the thinking in the White House is already small in terms of what can be accomplished legislatively in the next two years, so the executive action is likely Mr. Obama’s best bet to have a significant accomplishment during the remaining time of his presidency. The bigger question is whether the action will be sustainable because it is certain to be challenged legislatively and judicially. Administration and pro-immigration lawyers are already thinking ahead to the scenario of court challenges.

Big or small?   The advice from this corner is to go as big as possible within the confines of the above as rabid opposition will arise whether the President goes large or small. That is only a matter of numbers as the basic categories of relief in either case remain the same of increased DACA applicants and parents of U. S. citizen or permanent resident children. This writer notes that the President would encounter more difficulty if he offered relief to everyone eligible under S.744, a move that would put him even more susceptible to charges that he is declaring an amnesty and unconstitutionally impinging upon the power of Congress to enact laws. Critics would point out that if it looks like a duck and quacks like a duck, it must be a duck!

When to do it? Unless the Republicans offer a vote on S.744 immediately, Mr. Obama should do it now. That Republicans are not serious on reforming immigration anytime soon was seen in the November 7, 2014, meeting of congressional leaders at the White House when Mr. Boehner said that it would take months to make progress on immigration law changes. Should the President wait until the latest funding bill is passed or his choice for attorney general, Loretta Lynch, is confirmed? No, he can be fairly confident that the Republicans will not shut down the government, and that they will drag the confirmation process out until next year even if the Democrats wish to move in the lame-duck session.

The road ahead for the President and his Administration will undoubtedly be difficult if he keeps to his pledge. For the CIR optimists who believe that the Republican Party will back down and finally allow a vote on S.744 in order to claim some credit and put the immigration issue at rest for 2016, that result is improbable. The GOP will likely fight the executive action tooth and nail, and send up to the White House a modest immigration bill that fits its aims in 2015. Regardless of what the President does with such legislation, the Republicans will claim a victory on the immigration issue and undoubtedly declaim the Democrats as immigration obstructionists. The Democrats also cannot be assured that with this move Hispanics and other ethnic minorities will vote Democratic in 2016 even though the continuation of this relief would be largely dependent upon who is the next president for a host of reasons:  voters are fickle, other issues become more important, winning candidates must be appealable, it is a long way to the next round of presidential elections in 2016, and the Republican Party could possibly back candidates for president with softer stances on immigration, such as Chris Christie, New Jersey’s governor, or Jeb Bush, ex-governor of Florida.

The political risk is great, but the risk of doing nothing and letting the Republican Party dictate the terms of the immigration debate would be disastrous. Economically and morally, executive action on immigration is the path to take. And so, Mr. President, go for it, go big, and go now!

Copyright © 2003-2014 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.

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