Immigration reform was considered a “second term” issue for the Obama Administration, meaning that while President Obama saw the need for reform, he focused on issues that he saw as a greater priority in his first term, such as health care reform. When serious legislation addressing such topics as the millions of undocumented aliens already present in the United States, it fell victim to the Tea Party, a coalition of radical right-wing Republicans who gained power through gerrymandering, or the creation of congressional districts with strong conservative populations. The Tea Party flexed its muscle by forcing a government shut down over the funding of the Affordable Care Act, and thus discovered that it had the power to influence Republican House leaders to turn against immigration reform, branding any proposal other than enforcing the laws already on the books as amnesty. Hope for a legislative fix for the nation’s immigration problems died in President Obama’s second term.
But President Obama did not allow legislative gridlock to hamper his desire to pursue immigration reform. Using solely executive action, President Obama reformed the nation’s deportation policy by ordering Immigration and Customs Enforcement (ICE) to prioritize deportation cases involving dangerous criminals. In a policy called “prosecutorial discretion,” the President had ICE agree to the administrative closure of those cases that were not in line with the new priorities.
Similarly, by executive order, the President created a new program known as Deferred Action for Childhood Arrivals, or DACA. Deferred action is merely a promise by the Executive Branch not to seek the deportation of an alien present in the country without legal authority. Through DACA, President Obama gave relief to undocumented aliens who were brought to the United States as children, who had a US high school diploma, were working on education or who joined the military, and who did not a significant criminal record. Using his legal authority pursuant to the Immigration and Nationality Act, he then granted those people who qualified for DACA the authority to work legally in the United States.
The problem with pursuing immigration reform purely by executive action and without congressional action was that President Obama could not grant undocumented aliens a secure legal immigration status. Those who benefitted from prosecutorial discretion and DACA, therefore, were left vulnerable to a change in the presidential administration.
That change came in 2016, when Republican Donald Trump won the presidency through an Electoral College victory over Democrat Hillary Clinton. Trump had run on a hard-line immigration approach of strict enforcement to be highlighted by building a wall along the southern border to be paid for by Mexico.
Once in office, the stark contrast between President Obama’s view of immigration reform, and that of President Trump became evident. Emphasizing that even crossing the border without a visa was a criminal act, President Trump changed ICE’s enforcement priorities to include all aliens present in the country without legal authority. ICE began enforcement actions that heretofore had been unthinkable, such as immigration arrests being made in school parking lots, outside hypothermia shelters and in the halls of state courthouses where domestic abuse victims sought protection.
Other executive action taken by the Trump Administration included the exclusion of aliens from certain countries deemed to be dangerous by the Administration from entering the United States, most of which were Muslim countries, instructing Immigration Judges not to resolve deportation cases through administrative closure, instructing Immigration Judges that in the Attorney General’s view victims of domestic abuse and gang violence did not qualify for the legal protection of asylum, and the rescission of DACA.
Indeed, legislation proposals demonstrated that the Trump Administration’s definition of immigration reform was far more harsh than that of the Obama Administration. Gone was the idea that reform should provide benefit to those were in the country without authorization. It was replaced with a drive to contract family based immigration, and to discourage immigration from places the President considered “shit-hole countries.”
The difference between Democratic and Republican priorities in reforming the nation’s immigration laws could not greater.
President Trump created a crisis for foreign-born young people with his decision to rescind DACA. Although the courts have intervened, preventing the program from ending, DACA recipients find their legal status fragile and their future uncertain. He has insisted that a legislative fix was necessary. Meanwhile, he has bemoaned the efficacy of current immigration law, demonizing groups of Central Americans making the dangerous trek northward in the hopes of applying for asylum as potential gang members and terrorists. He has insisted that any legislative efforts to address the DACA crisis also include greater border security measures (such as the funding of the border wall), the curtailment of family based immigration, and the elimination of a program meant to create greater diversity in those who immigrate to the United States (that is, the annual diversity visa lottery).
Surely, with court action currently protecting DACA recipients, and the vast difference between the parties on immigration issues, it seems highly unlikely that the newly elected Democratic House majority will agree to the Trump Administration’s demands for harsher and more restrictive immigration reforms. Barring intervention on DACA by the Supreme Court, any hope for legislative action to be taken in the next two years on immigration reform would appear to be folly. That is, only if the Supreme Court were to accept a case involving DACA, and side with the President, would there be any pressure on the Democrats to find some common ground on immigration in order to protect a sympathetic group of law abiding young people. Even then, the price may be so high that the Democrats would prefer to have the issue front and center for the 2020 presidential election.
This continued inaction on addressing the nation’s immigration problems may set-up the issue of immigration reform as an powerful issue going into the next round of federal elections.
By: William J. Kovatch, Jr.
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