With the decision by President Obama to approach immigration reform through executive orders rather than continue to hope legislation can be passed in Congress, J. BROOKS SPECTOR takes a first look at the political tug of war that may ensue as a result.
Not like the brazen giant of Greek fame,
With conquering limbs astride from land to land;
Here at our sea-washed, sunset gates shall stand
A mighty woman with a torch, whose flame
Is the imprisoned lightning, and her name
Mother of Exiles. From her beacon-hand
Glows world-wide welcome; her mild eyes command
The air-bridged harbor that twin cities frame.
“Keep, ancient lands, your storied pomp!” cries she
With silent lips. “Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!”
— The New Colossus, by Emma Lazarus
Since 1903, Emma Lazarus’ poem has been inscribed on a plaque at the base of the Statue of Liberty in New York’s harbour. And since 1886, a glimpse of this statue has been one of the earliest sights a new immigrant to America saw as their ship approached the immigration inspection station at Ellis Island – one of the main gateways into America for the massive waves of immigrants.
Of course, ultimately everyone in the country is a descendant of immigrants, even if some trace their families back to 17th century English fortune seekers, pirates, fishermen or religious refugees, to slaves brought to those shores involuntarily, or even to the country’s aboriginal inhabitants. (Those people were also immigrants, of course, if one reaches back ten- to fifteen-thousand years into pre-history.)
A vast jumble of races, religions, ethnicities and nationalities passed through Ellis Island’s inspection station halls (now a national historical park), as well as at similar sites in other major US ports. And almost every new arrival was excited for their new life as well as fearful an official would chalk a big “X” on their back, thereby condemning them to be repatriated to where they had come from because of such disasters as a chronic cough (a sign for TB) or cloudy squinting eyes (evidence of glaucoma).
Sometimes it was an unfamiliar name that caught the attention of an immigration inspector. Would-be immigrants could be so fearful of rejection if the official couldn’t read a name written in some alien language or script that new arrivals were prepared to accept almost any name the official might choose to write on the immigration ticket in order to gain entry. (One of the writer’s own ancestors became “Smith” instead of “Lisagor-Grodanz”, when that name had been written in Cyrillic on their documents, for that very reason, according to family legend.)
Until the restrictions of 1921 and 1924 in US immigration, millions of people fled their home countries for economic advancement, escape from persecution, or the search for religious or political freedom. Thereafter, the legal numbers of immigrants dropped precipitously until changes in law in the 1960s. By that point, a growing number of legal immigrants began arriving from Asia, Africa and Latin America.
Concurrently, however, a growing number of illegal aliens/undocumented immigrants (the choice of terminology has a real political significance) began entering the US at growing rates, coming increasingly from Latin America and Africa, thus becoming the core of the current American argument about immigration reform. At present, the best estimates are that there are some 17 million immigrants without legal status in the country – a combination of arrivals who have long overstayed their actual short-term visas and those who have simply entered the country without having passed through any immigration formalities whatsoever.
Much of this flow has come by way of the country’s southern border with Mexico, largely along the Rio Grande River, which despite its name is often a mere trickle. While in previous years, the majority of such arrivals were probably Mexican; increasingly, the numbers seem to be tilting much more in the direction of Central American arrivals. Current studies seem to indicate Mexican arrivals are essentially in balance with Mexican departures, consistent with the growing job opportunities in the northern tier of Mexico’s industrial belt that has come about through the provisions of the North American Free Trade Association.
Many such immigrants now are arriving as the cargo of organised trafficking rings that bring arrivals across the border in disguised trucks or shipping containers, or on much more gruelling, escorted walks through the desert-like scrub landscapes of the Southwest. The most recent stories about the growth in numbers of illegal immigrants concern large numbers of children being sent northwards by families to avoid the spiralling violence and gang warfare now endemic in Central American towns and cities.
In the meantime, for almost everyone associated with, or interested in American immigration law, it has become increasingly clear the system is seriously flawed. It effectively has no realistic mechanisms for bringing into legal compliance that very large cohort of illegal immigrants/undocumented aliens (the very disjuncture in terminology speaks to a profound disagreement about what those people represent – criminals or aspirant claimants to the “American dream”) as a way of regularising their immigration status, save via torturous and infrequently successful claims to political refugee status.
For years, politicians – Democratic/Republican; conservative/liberal, all – have talked about immigration reform, even as the numbers of those without legal documentation to stay in the US has grown. But immigration reform has become hopelessly tangled up with questions of the anti-terror campaign, unemployment and the globalisation of the economy and job loss in smokestack industries, and the continuing partisan political stalemate in Washington over nearly everything else. In fact, of course, immigration is a hot button issue for nearly every nation, from South Africa to the EU to Australia, causing almost as much political concern as it does in the US.
And, along the way, immigration reform has become a stalking horse for opposition to the rest of a presumed Democratic agenda in building support for Democratic candidates among the Hispanic (citizen) population as those numbers continue to grow as well. There is the theory that immigration reform would be designed to create a wave of new citizens out of all those immigrants – new citizens who would be sufficiently grateful for this act that they would vote Democratic for generations to come, swamping future Republican candidates in such key states as Florida, Colorado and Arizona.
As a result of all of this, immigration reform has been stalled in GOP-controlled Congress for years. A version of it was passed by the Democratic Party-controlled Senate (Democratic until this most recent election) with a bipartisan support, but there has been no action in the Republican-controlled House of Representatives. For many Republicans, immigration reform is a sneaky synonym for processes that would inevitably lead to a broad amnesty for illegal immigrants – or so their rhetoric would indicate. Amnesty is a loaded term that seems to have a particular resonance for Republicans in reaching the psyches of tea party-leaning conservatives (and probably more than a few voters with some still-unresolved racial attitudes about minority groups).
And so, while proponents of immigration reform (and many Hispanic voters, among others) waited for the Obama administration to pull a rabbit out of a hat on this issue in accord with an early campaign pledge from 2008, Congress effectively refused to conclude final action on immigration reform. Declining to turn immigration reform into an even more emotive issue than it already was, and most likely an issue to encourage even more Republicans to come out to vote in close races, the Obama government waited until after the mid-term election to announce a partial immigration reform package – issued by executive order.
Specifically, this executive order allowed for the following immigration policy changes. As explained by the New York Times after the president outlined his plan, “President Obama announced on Thursday evening a series of executive actions to grant up to five million unauthorised immigrants protection from deportation. The president is also planning actions to direct law enforcement priorities toward criminals, allow high-skilled workers to move or change jobs more easily, and streamline visa and court procedures, among others.
“The president’s plan is expected to affect up to five million of the nation’s unauthorised immigrant population, currently 11.4 million according to the Migration Policy Institute. It would create a new program of deferrals for approximately 4 million undocumented parents of American citizens or legal permanent residents who have been in the country for at least five years. Deferrals would include authorisation to work and would be granted for three years at a time.
“It would also expand a program created by the administration in 2012 called Deferred Action for Childhood Arrivals, or DACA, which allows young people who were brought into the country as children to apply for deportation deferrals and work permits. The plan would extend eligibility to people who entered the United States as children before January 2010 (the cut-off is currently June 15, 2007). It would also increase the deferral period to three years from two years and eliminate the requirement that applicants be under 31 years old. About 1.2 million young immigrants are currently eligible, and the new plan would expand eligibility to approximately 300,000 more.
“The deferrals would not include a path to full legal status or benefits under the Affordable Care Act. There are also no specific protections for farm workers or parents of DACA-eligible immigrants. An additional one million people will have some protection from deportation through other parts of the plan.”
While this decision represented a serious shift in the president’s position of his executive powers (he had previously argued that new legislation was needed as he didn’t have the current authority to carry out piecemeal reforms via executive orders), both legal opinion and presidential precedents seem to be in his corner on this, his new position. Both Republican Presidents Ronald Reagan and George HW Bush issued executive orders on immigration amnesties, and the Justice Department’s Office of Legal Counsel (OLC) had earlier issued a memorandum that argued that such executive orders were well within the powers and prerogatives of the executive branch.
Photo: An Obama supporter (C) passes Donald Webb (L) as he shouts slogans against US President Barack Obama who was scheduled to deliver remarks on his immigration policy at the Del Sol High School in Las Vegas, Nevada, USA, 21 November 2014. EPA/MICHAEL NELSON
Or as Thomas Mann noted at the Brookings Institution think tank’s website, “The President’s executive actions on immigration are limited, contingent on statutory authority and prosecutorial discretion, and temporary. They can be neutered or replaced by legitimate congressional law-making or a successor in the White House. This is less a power grab than an acknowledgement that the country is far from the post-partisan politics that he promised in his initial run for the presidency.”
In rendering its decision, it is useful to note that the OLC is not the president’s personal legal advocate, advising which course of action is best for him; but, rather, the OLC is a kind of in-house legal counsel advising what is within the law. Whether the presidential decisions were politically savvy – or politically suicidal – is, of course, an entirely different thing. Public opinion on immigration reform is still deeply divided.
Bit what this decision has undeniably done, however, is push the ball right back at Congressional Republicans. While they have already carried out a bit of furious howling at the president for trying to stretch his powers into the kind of “imperial presidency” he had once publicly eschewed, so far at least, congressional Republicans have limited themselves to considering taking legal action in the courts, arguing this executive order would be beyond the authority granted the president by law, or huffing and puffing from the fringes about the possible impeachment.
A similar strategy is now in play, for example, on behalf of the Republican congressional leadership in initial forays against the Affordable Care Act (Obamacare) law passed some four years ago, rather than trying to repeal the act. After some difficulty they have identified an attorney who will begin the process of arguing against elements of the ACA. Expect something similar over the executive order on immigration.
But there is another school of thought – or perhaps a very canny political strategy – already being floated as a trial balloon by the thoroughly conservative Arizona Republican Senator, Jeff Flake. The senator usually gets accolades from rating bodies on the right like the American Conservative Union for his positions. But, remember, Arizona is a border state, and thus one with a real dog in the fight on the question of illegal immigration and one with constituents who can be presumed to be very interested in this matter.
Despite such predispositions, in a discussion with columnist for the Washington Post, Dana Milbank, Flake outlined a deal that would have the president agree to a whole sequence of bills in exchange for the legislative ratification of the policies in his executive order. As Milbank wrote, “The natural instinct is to poke back — an eye for an eye. But one Republican, at least, has a better idea. ‘Rather than poke him in the eye, I’d rather put legislation on his desk,’ Sen. Jeff Flake (R-Ariz.) told me Thursday.”
Milbank notes that Flake is “also a reasonable man; he was a member of the Gang of Eight that crafted the original Senate compromise on immigration. And this border-state legislator thinks it’s stupid to shut down the government [one of the ideas being floated by some Republican legislators] in an effort to undo Obama’s immigration order. As for the lawsuits against Obama? ‘Background noise,’ he said.”
Flake has proposed letting the president’s executive decisions become permanent, but, with some conditions. Milbank wrote, “if Obama first makes the three concessions that Republicans have long sought on immigration. His hunch is that Obama, to quell the Republican rage on immigration and to make his executive action permanent, would ultimately take that deal.”
First, Flake wants Congress to pass a border security bill with tougher standards than those in the current Senate bill that has gone nowhere in the House. This would require a 90% apprehension rate of illegals at the border. Flake argues the president “would be harder-pressed to veto a border security bill, a tough one, than he would have before.”
Second, the new Republican Congress would send the president a bill calling for tougher domestic enforcement of immigration, including a mandatory “e-verify” program for documentation of legal foreign residents seeking work.
Third, Congress would send the president new legislation dealing with visas for temporary and high-tech workers. While some of the president’s fellow Democrats would probably object to these provisions, Flake argues Obama would find them “tougher for him to turn down,” now that the president’s executive order has stirred up a hornet’s nest in the capital – and well beyond it.
In this grand bargain, only after the passage and being signed into law of those three measures would Congress send the president legislation giving his earlier executive order the force of law; thus, as Milbank writes, “providing a path to citizenship for undocumented immigrants. Flake admits that will still be opposed by many Republicans as so-called amnesty. But he thinks he can win over enough of them after giving them the piecemeal approach to immigration reform they insisted on. Obama and the Democrats may regard the first three bills as legislative eye pokes, but the president, who picked this latest fight with his executive action, has a powerful incentive to make concessions now.” This is because Obama’s executive order only provides for temporary protection from deportation for some 3.7 million undocumented immigrants. Sans congressional agreement, there is no path to citizenship – and any future president could reverse Obama’s executive order.
It is still early days, however. House Republican Speaker John Boehner and incoming Senate Majority Leader Mitch McConnell will certainly take the temperature of their congressional colleagues very carefully before allowing the hotheads in their party to charge off on threats to set off yet new government shutdowns; withhold confirmation of all the president’s new appointments; or exact serious budgetary penalties on the president’s favoured programs and plans.
But, here’s the thing, if Republicans hope to contest for much of the Hispanic vote in 2016, it would likely not go well for them to be seen as the faction that was being completely obdurate on measures close to the heart of many in that same community. And there is also the point that slamming all future possibilities on the immigration reform front can only put Republican senators like Marco Rubio and Ted Cruz, likely contenders for the presidential nomination 2016, on their respective back feet, given their own Hispanic heritages.
For a president who has been derided as a lame duck with no hopes of achieving anything in the last half of his second term, it is just possible that this executive action on immigration may yet prove the cynics wrong. As the AP observed the day after Obama’s remarks, “United against President Barack Obama but uncertain how to stop him, outraged Republicans struggled for a response on immigration Friday that would check the president without veering into talk of impeachment or a government shutdown. Their remedy was far from clear. Republicans weighed filing a lawsuit. Or trying to block funding for Obama’s move. Or advancing immigration measures of their own. But the party was divided, and Obama’s veto pen seemed to give him the upper hand.” And if legislators like Flake have any influence, it is just possible that the US will see its first real progress on immigration reform in a long, long while. Stay tuned. DM
Photo: Supporters cry as US President Barack Obama delivers remarks on his immigration policy at the Del Sol High School in Las Vegas, Nevada, USA, 21 November 2014. US President Barack Obama’s move to protect millions of undocumented immigrants from deportation by executive order sparked passions on both sides of the immigration debate on 20 November, as reform advocates celebrated and opponents fumed. Obama invited millions of undocumented immigrants in the US to ‘come out of the shadows’ as he announced unilateral, if temporary, changes to immigration policy allowing them to stay and work legally. EPA/MICHAEL NELSON
Stymied? Republicans seek immigration response at the AP;
House G.O.P. Files Lawsuit in Battling Health Law at the New York Times;
Obama’s Immigration Order Isn’t a Power Grab, a report by Thomas Mann at the Brookings Institution website;
How the GOP can poke back against Obama’s immigration order, a column by Dana Milbank at the Washington Post;
Obama, Daring Congress, Acts to Overhaul Immigration at the New York Times;
Obama’s Immigration Action Has Precedents, but May Set a New One at the New York Times;
What Is President Obama’s Immigration Plan? At the New York Times;
Letting us in on an immigration secret, a column by Ruth Marcus in the Washington Post;
The Democrats’ Immigration Problem, a column in the New York Times by Zoltan Hajnalnov;
Obama immigration plan good, not great for economy at the AP;
The anxieties of the GOP majority —Even after a historic midterm win, Republican confusion over how to respond to Obama on immigration is evidence of a changing party at Politico.com.