Tuesday, November 18, 2014

Can the Republicans Derail Administrative Action on Immigration?

The rumors are that President Obama will announce some kind of administrative action to address the large numbers of undocumented aliens already living in the United States.  What will that action be?  While at this point we can only speculate, the best educated guess is that it will be some type of expanded deferred action program, like the one the President adopted for undocumented aliens who were brought to the United States as children.  How broadly the program will cover remains to be seen.

Republicans, emboldened by their victories in the November mid-term elections, are warning that any executive action on the issue of immigration will meet with fierce legislative resistance.  The question, however, is just what can congressional Republicans do to derail any administrative action?

The President's safest bet would be to expand his Deferred Action for Childhood Arrivals, or DACA, program.  Deferred action is not really a legal immigration status.  It is merely a promise by the Government that it will not deport someone.  Deferred action is already built into the law.  The President can grant deferred action on a case-by-case basis.  Once deferred action has been granted, the law permits the alien to apply for work authorization.  Thus, while it is not a real legal status, and cannot lead to permanent residency or citizenship, it can allow an undocumented alien the ability to work and earn money legally.

There has been a lot of talk of impeachment.  That is, if the President were to act alone and announce such a broad-based deferred action program, some Republicans believe that there would be grounds to impeach the President.  The argument is that the President would be acting contrary to law by failing to enforce it.

Impeachment, however, would be a tough sell for Republican law makers.  First, as stated above, the law gives the President the discretion on a case-by-case basis to grant deferred action.  It has traditionally been a vehicle used for humanitarian purposes.  Nothing in the law says that the President cannot define a set of criteria on which he would grant deferred action.  Thus, on a purely legal basis, impeachment is on shaky grounds to begin with.

At any rate, a Republican-led House of Representatives has already impeached the last Democratic president, Bill Clinton.  While the grounds for Clinton's impeachment may have had sounder legal grounding (perjury by the chief executive officer in a sworn deposition of a pending lawsuit), the fact is that Republicans would have an image problem if they were to impeach two Democratic presidents in a row.  That is, it would leave the Republicans open to the charge of being willing to undermine the democratic process, instead of working together towards a solution to the nation's immigration problem.  (To those who would argue that the President is the one ignoring the democratic process by acting alone, it should be noted that the Republican-led House of Representatives has had numerous chances over the course of the past two years to propose and pass a serious immigration reform package.  They have failed to do so.)

The next strategy that appears to be gaining popularity is simply to de-fund the President's program.  This solution, some argue, would not require a shut-down of the Government, because the Republicans can just pass a continuing resolution that contains all of the funds necessary to have the Government operate, minus the funds needed to operate the President's program.

This strategy has two fatal flaws.  First, it fails to recognize how U.S. Citizenship and Immigration Services ("USCIS"), the agency that would be charged with administering any program the President adopts, is funded.  USCIS is not funded as a line item in the budget.  To the contrary, USCIS is funded through user files.  That is, every petition or application for an immigration benefit involves some sort of filing fee.  As it is, those filing fees are pretty high.  To become a permanent resident, for example, involves filings fees of almost $1,500.

All DACA applicants had to pay a filing fee of $465.  That included the cost of processing the DACA application itself, the work authorization application and the background check.  Thus, so long as the Administration sets the filing fee at an appropriate level, what Congress does with the budget will have little impact on the President's program.

The second problem with de-funding the President's program is that it assumes that the President will sit back and let it happen.  In our republic, all legislation, including the budget, has to be passed by both houses of Congress and signed by the President.  Bills concerning spending must originate in the House of Representatives.  But, if the House passes a continuing resolution that funds some, but not all, of the Government, the President could veto it.  The House tried this a year ago in an effort to de-fund Obamacare.  In the end, it didn't work.  Worse yet, the Republicans were politically damaged and had to spend the next few months repairing the damage before the November elections.  (It is important to note  that redistricting played a huge role in the Republican electoral victory.  That is, state legislatures redrew congressional districts in such a way as to create a large number of districts with very conservative majorities.  The result was that many very conservative candidates did well in the primaries and rode the redistricting wave to victory in the general election.  In a presidential election, the Republicans will have to face a national electorate, which will not likely be as conservative as the smaller congressional races.)

In the end, there may be very little the Republicans can do to prevent the President from implementing a carefully constructed program to address the presence of undocumented aliens.  The risks to the Republicans are great, considering the national electorate they will face in the 2016 elections.  A better course may be for the Republicans to offer a constructive counter-solution, one that involves more than simply building bigger walls and a push for indiscriminate deportations.

By:  William J. Kovatch, Jr.
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