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What the President Can –and Can’t– Do about Immigration
What the President can do about immigration is largely limited by Congress. But that doesn’t mean he’s powerless. Far from it, he can still change the lives of millions of people with the authority he does have.
It’s civics 101: Congress writes the laws and the President enforces them. Sounds simple, doesn’t it? The President should just do exactly what Congress tells him to. But if that’s the case, why can there be anything that he can do? Shouldn’t Congress have clearly stated what is or isn’t the law with regards to immigration? Why do commentators keep saying he has discretion?
Simple: Congress told him he has discretion.
What a lot of people don’t know is that Congress has granted some of its’ discretionary power’ to the President. The Legislative Branch (Congress) has the ultimate power to decide what is done with someone or some thing. They are where all laws start and they have the most control over what happens to whom when the laws are first drafted. This is called their ‘discretionary power’. The Executive Branch (the President) is charged with the job of enforcing the laws Congress drafts. Still with me? Good.
Now if the Legislative Branch has the power to decide what happens with their laws, then it follows that they also have the power to decide what to do with their power. In the case of immigration law, Congress has granted the President a little bit of their power to decide what to do with certain violators of their laws. Specifically, Congress has delegated their power to prioritize who is deported first and who should be deported last. This is called ‘discretionary power’ or ‘prosecutorial discretion’.
Why would Congress do this? There are a few factors, but the most important thing is that Congress is a busy organization. It has to set the rules that we all follow. While this article is focused on immigration, which is a field with an almost dizzying number of rules, there are literally thousands of other parts of the nation that need rules to be written for them as well. Add on top of that all the people that want rules changed or taken away or added to, and you come to an organization that is frankly overworked. If they had to decide every year what the new priority for deportation was, or how many visas to issue this year, or if left- handed clam- shuckers were the most important people to give visas to (and treat other areas with a similar level of micromanagement), then they would quickly run out of time in the day to do simple things like sleep. Instead, Congress has granted the President to make those decisions instead. This frees Congress up to keep writing the laws for other fields. The President is left to decide how to best implement the laws.
Civics is boring! What’s your point?
My point is that the President has the power to decide who should be deported now and who should be deported later. This is the lynchpin of any plan that comes out of the White House.
Depending on who you ask, there are about 11- 12 million undocumented immigrants in the US today. Without ‘documentation’, those immigrants are technically here illegally. That means they are deportable, should they be detained by immigration (or state or federal authorities). However, the various entities that enforce immigration law can’t deal with 12 million people all at once. Instead, they have priority lists of who should be deported and who should be ignored, based largely on if they have committed certain crimes or how long they have been in the US. This is the key part of the President’s Deferred Action for Childhood Arrivals order from 2012. What the President did was tell the agents enforcing the immigration laws from Congress to “defer action” against people who meet certain criteria: That they’ve lived in the US for a certain number of years and that they were of a certain age; that they hadn’t committed any major crimes or otherwise been in trouble with the law. If someone met these criteria, they were moved to the bottom of the deportation queue and allowed to apply for a work permit.
The same thing would happen with the President’s new plan. While we won’t know exactly who’s protected by it until it’s unveiled, most commentators agree that the broad outlines will likely cover these folks:
- Parents of US citizen or Green Card- Holding Children. It’s estimated that there are 3.5 million people who are illegal immigrants themselves, but their children are full citizens or have green cards. Typically, these are people who have come to the US illegally but then had children while on US soil, which grants citizenship to the child. But even when the child is a full US citizen, Immigration has deported their parents for being in the US illegally, in some cases leaving the child all alone without their family. By preventing these deportations, the President would allow families to stay together.
- Spouses of US citizens or Green Card Holders. There are about 1.5 million spouses of US Citizens and Green Card Holders who are barred from applying for citizenship through their spouse because of their illegal presence in the US. Should the President defer deportation actions against these people for applying for citizenship, these families would finally be able to stay together as well.
- Expand the DACA program. The President could expand who is covered by the DACA program, which is currently only open to immigrants who came into the US before 2007. There might be as many as 300,000 people in this category.
- Anyone Else? There are still about 5-7 million undocumented immigrants not covered by these categories, such as entire families without a US citizen or green card holder or migrant farm workers who could potentially be covered. However, most commentators don’t expect the President to cover them at this time. There’s always hope for the future, of course!
So that’s the good news. There are about 5 million or so people that the President is expected to help with his upcoming plan. These people would all be allowed to apply for at least a renewable work permit that lasts for 2 years (if the DACA is a guide), and maybe even apply for citizenship. Either way, the applicants will likely need to have a clean criminal record and be able to pay the application costs. But never the less: This would be a major milestone in the President’s agenda to not break up families through deportation.
Well that sounds great! What else can the President do?
Not really much else, without Congress passing a new law.
This brings us back to the civics lesson I gave up there. Remember how Congress gave the President some discretion in immigration laws? Well, they established bounds of that discretion that the President has to follow. As much as some advocates would want him to, he is powerless to do any of the following:
- The President can’t just stop deportations. Everyone who is in trouble with Immigration must have a hearing eventually. It’s in the Constitution that no person shall be denied due process of the law. And even if it’s to be removed from the nation, every person being deprived of their life and liberty in the US has a chance to have their case heard. So even our otherwise law- abiding immigrants will, at some point, have to have a deportation hearing. It’s why it’s been called a ‘deferred action’ this whole time. (That doesn’t mean that they’re absolutely going to be deported though! The hearing can always end in the judge deciding that the immigrant should not be deported. And if you’re in this kind of a situation, I highly suggest you talk with an attorney. Your chances of staying in the US are much higher with an attorney than without).
- The President can’t give someone a Visa. In that same vein, the President can’t circumvent the application process and give everyone a visa. Congress has required that all applicants go through a screening process. The President cannot let someone circumvent that process. When the President announces his plan, I expect that many of the people it affects will be able to apply for a visa. But they’ll have to wait in line like everyone else who applied.
- The President can’t change the Visa limits. Finally, even if the President could somehow grant to all 5 million or so of the people who his order might cover the qualifications for a visa, Congress has set the number of visas that can be awarded far below that high number. As it currently stands, there are less than 500,000 family visas (so called because they are designed to keep families together) awarded annually. 1/10th of the potential 5 million immigrants the President’s plan is supposed to affect.
What this all boils down to is that the President has the power to affect the lives of millions of people. Despite some setbacks, it appears that he is dedicated to making a change to immigration laws by the end of the year. This is a great opportunity for all these affected families and one that I would be happy to really sink my teeth into once the President makes his announcement. As always, I recommend that anyone looking to use this path to immigration consult with a lawyer to see if it’s right for them. We would be happy to talk to you.