Even the most ardent critics of President Obama’s executive actions on immigration must acknowledge they are undeniably sweeping, historic in scope and will have a huge impact on the large undocumented long-term residing population of the United States with one or more U.S. citizen children or children who are Lawful Permanent Residents. This action was taken by President Obama after it became quite clear that the House of Representatives was unable or unwilling to enact meaningful immigration legislation that would allow Congress to pass broad-based reform to deal with the multitude of issues in our frankly unworkable system.
Just as all Americans love baseball and apple pie, everyone agrees we must secure the border. However, after spending billions of dollars for high tech fencing, highly sophisticated drones and a huge increase in U.S. Board Patrol, we must admit that there are other legislative fixes that would be far more effective.
In any event, final passage of broad-based immigration reform will include a huge increase in border security funding. Even more significant, it will provide a temporary worker program so that there is a legal mechanism by which foreign workers could come in and work legally where there were proven shortages of labor in the United States. Politicians tritely say “We are for immigration, but we want these people to get in line and come in legally.”
Giving those politicians the benefit of the doubt, they do not recognize that there is no functioning legal system for semi and low-skilled workers. There is no line. There is no way for people to come in legally and do many of the jobs that some Americans are unwilling to do even at the prevailing wage as established by the Department of Labor. In most cases, we’re talking about wages in excess of minimum wage. The rhetoric of those politicians simply does not reflect reality.
The House of Representatives was not only unwilling to pass immigration reform, but lawmakers were also ironically incapable of passing a border security bill. Expanded Republican majorities have diminished the prospects of immigration reform even further. President Obama’s executive actions were criticized as “poisoning the well.” But, I believe Mr. Obama’s actions should spur Congress to enact a version of immigration reform that both Republicans and Democrats can be proud of.
Some have said the president’s actions are illegal and unconstitutional. A lawsuit filed by then-Texas Attorney General Greg Abbott took the lead with 18 other states in federal district court in Brownsville asserting the president’s actions violate the Constitution. The case seems likely to end up before the Supreme Court. I believe it is safe to say the legal authority to exercise discretion with respect to prioritizing this kind of law enforcement – especially when Congress has refused to act – clearly rests with the president.
Given the fact that who will directly benefit from these executive actions are already long term residents of the State of Texas and have been residing in the U.S. continuously from before January 1, 2010, and since the Executive Actions do not require the State to incur any expense in connection with same and since such individuals are already fully employed in the State of Texas, it will be difficult for the State to eventually show what harm it will incur. The State of Texas has argued that the actions will create what lawyers call an “attractive nuisance” because it could cause more illegal immigration across our southern border.
This argument, however, may be hard to sustain, particularly since no new arrivals are eligible to benefit. Further, the President of the United States has prioritized enforcement including the arrest, detention and removal of foreign nationals who have associations with known terrorists or suspected terrorist groups, those with felony convictions, sex offenders, those with outstanding deportation orders and new or recent arrivals. If anything, the executive actions bring about more enforcement by prioritizing the arrest, detention and removal of those who are caught crossing the border or who have recently entered the United States.
While the State of Texas may argue that the past DACA program encouraged large numbers of undocumented children to cross the border, there appears to be little empirical evidence. When surveyed as to why they were crossing the border at this time, the children mentioned the push factors in their home countries being primarily high levels of crime and the even more important pull factors of trying to join their parents in the United States. An insignificant percentage had any awareness of the previous announced DACA program which was the result of prior Executive Action by President Obama in 2012 when he announced Deferred Action for Childhood Arrivals (DACA) allowing individuals who entered as children under the age of 16 prior to January 1, 2007 to apply for deferred action and employment authorization.
The most controversial Executive Action, Deferred Action for Parental Accountability (DAPA) is estimated to provide benefits for an estimated 4.5 million long-term residents of the United States who are undocumented as of November 20, 2014 and who have resided continuously in the U.S. since January 1, 2010 with one or more U.S. citizen children (or one or more children who are Lawful Permanent Residents) with no felony convictions or convictions for a serious misdemeanor. The Executive Actions also expanded Deferred Action for Childhood Arrivals (DACA) program that was first announced by the President in 2012 and expanded the eligibility so that individuals who only had to reside in the U. S. since prior to January 1, 2010 rather than January 1, 2007, and removed the age limit of 35 provided such individuals had entered the United States prior to the age of 16 and were in the United States as of November 20, 2014, the date of the President’s announcement.
What does the DAPA and expanded DACA programs mean for U. S. employers?
Listening to TV and radio commentators, one would think that the large undocumented population somehow is in hiding rather than obviously living and working among us in the open. It is widely recognized that they provide a significant majority of the workforce in highway, residential and commercial construction, and the hospitality industry, particular restaurants and hotels, in agriculture and the landscaping industry. In short, we live in a world where an undocumented population is doing the hard backbreaking work they have done throughout the history of the United States. They pave the roads we drive on to work, they valet park our cars, prepare the dishes in our favorite restaurants, wait on the tables, bus those tables, clean the floors in restaurants, clean our hotel rooms and office buildings, mow our lawns and when there is a disaster, they are the first on the scene to do all the hard cleanup work, whether it was following Hurricane Katrina in New Orleans or Ike in Texas.
More controversial sweeping actions by American Presidents in response to immigration emergencies are nothing new. After Castro took power in Cuba, Presidents Eisenhower, Kennedy and Johnson paroled in more than 900,000 Cubans. Seven years later, Congress signified its approval through enactment of the Cuban Adjustment Act in 1966. In recent decades, when emergencies erupted and humanitarian crises presented themselves, Presidents of both political parties have not hesitated to act on their own initiative outside the customary channels of legislative activity, often to protect large numbers of vulnerable immigrants from deportation. This has happened over 20 times since the mid-1970’s. In almost all such instances, the Congress subsequently ratified such executive orders with appropriate legislation.
This is, for example, what happened at the close of World War II when President Truman allowed 250,000 European refugees to enter or remain in the United States; three years later, in 1948, Congress enacted the Displaced Persons Act, allowing 400,000 additional admissions. In April 1975, at the end of the Vietnam War, President Ford asserted his parole authority to sanction the evacuation of 200,000 South Vietnamese. Further congressional approval of President Ford’s executive order came in 1980 with enactment of the Refugee Act making possible the resettlement of 1.4 million Indochinese people. That same year, President Carter took in 130,000 Mariel Cubans who eventually obtained “Cuban-Haitian entrant status” under President Reagan. Six years later, the Immigration Reform and Control Act made these Cuban-Haitian entrants lawful permanent residents of the United States.
The next year, Attorney General Edwin Meese ordered the legacy INS not to remove some 200,000 Nicaraguans and, a little after that, extended similar protection to 190,000 Salvadorans seeking to escape from the horrors of civil war. Ten years after Attorney General Meese first acted, Congress made possible their adjustment of status. In 1989, following Tiananmen Square, the Bush Administration granted Deferred Enforced Departure to 80,000 Chinese students studying here; According to the Commissioner of the U. S. Immigration and Naturalization Service at that time, this action had the potential of benefitting upwards of an estimated 1.5 million individuals out an undocumented population of 3 million.
Three years later, Congress paved the way for their green card status through the Chinese Student Protection Act. The point is always the same and remains instructive today: Executive Action in immigration is always a prelude to congressional legislation, not a substitute for it nor a barrier to its enactment.
Both Presidents Reagan and George H.W. Bush took actions similar to the DAPA and DACA.
President Bush granted extended voluntary departure that according to the Commissioner of the U. S. Immigration and Naturalization Service at that time had the potential of benefitting upwards of an estimated 1.5 million individuals out an undocumented population of 3 million. President Obama’s Executive Actions also benefitted approximately one-half of the undocumented population or about 4.5 million out of 11 million. In both cases, the applicants were eligible to apply for and obtain the most significant benefit of the 3-year deferred action program, identical to the benefits granted by Presidents Reagan and Bush; that being the eligibility to apply for an Employment Authorization Document (EAD), which gave the beneficiaries unrestricted work authorization. With the EAD, the beneficiaries also become eligible to apply for and obtain a valid Social Security Card and a valid driver license.
It should also be noted that deferred action simply means the President says we are prioritizing our enforcement policies and we are going to first concentrate on the removal of the list of bad guys I’ve already mentioned. For a 3-year period, we are not going to institute proceedings to deport qualified foreign workers from the U.S. I often point out that, in some ways, as an outlier in terms of his views on immigration policy, newly elected Texas Lt. Governor Dan Patrick took a more liberal, if not more radical stand as he said in his televised debate with Senator Leticia van de Putte that “We’re not going to deport 11 million people.” In contrast, one could argue with tongue in cheek, that the President of the United States only said “We’re not going to deport 4.5 million for a 3-year period.”
In the end, this was not only the right thing to do, but the humanitarian thing to do for long-term residents of the United States who do the backbreaking work that has benefitted our economy and each of us individually. It should be, as my children like to say, a “no brainer.” In reality, deferred action does not give the individuals any great right; it does not lead to anything. It is not amnesty. There is no pathway to anything. It is not a substitute for Congressional action. It does not give them Permanent Residency or lead to Permanent Residency and they are not allowed to cut in line ahead of anyone seeking Lawful Permanent Residency.
Governor Perry’s Executive Order Mandating State Agencies to use E-Verify
Not to be outdone, Governor Perry issued his own Executive Order on December 3, 2014, mandating that all contractors with the State of Texas and any agency subject to the supervision and appointment power of the Governor of Texas, be required to use the Federal program known as “E-Verify.” E-Verify essentially runs the name and social security number of a new employee to verify that there is a match between the name and a valid social security number.
The Governor’s Executive Order went beyond what is legally permissible under the E-Verify program. Under the E-Verify program, an employer must first sign a Memorandum of Understanding which specifically prohibits the employer from using the E-Verify system with current employees, but may only do so with new employees. Under Governor Perry’s Executive Order, he would require that not only new employees be E-Verified, but also existing and prospective employees. These provisions are likely to be found to be unenforceable. But what is enforceable will have a serious impact on Texas employers.
The E-Verify requirement includes not only the contractor himself or herself, but also their contractors or subcontractors and all their new employees. As a practical matter, we can all take note that many employers that contract with the State – be they in highway construction or universities or hospitals or those individuals doing work on highway projects – will have to E-Verify not only those individuals who do work on a new contract for the State of Texas, but all new employees for that particular employer, which could have some significant impact in these industries.
One can say that the silver lining of Governor Perry’s Executive Order is President Obama’s Executive Actions. Why? Because approximately 4.5 million individuals will be able to obtain work authorized and then those companies that contract with the State of Texas will now have a much larger pool of individuals from which to hire who will be eligible to pass the E-Verify requirements.
One final note. It has been pointed out by others that there is a certain irony in Governor Perry both condemning the President for taking Executive Actions, particularly given the fact that the House specifically failed to act even when the Senate did approve a broad based comprehensive immigration bill. One could argue that the fact that the Texas Legislature has previously rejected legislation that would have mandated by law the requirement that all state contractors use E-Verify at the very least also puts into question the legality of Governor Perry’s Executive Order. That law was rejected and yet the Governor went ahead and made an Executive Order directly in contravention with, one could argue, the policy of the State Legislature.
In conclusion, it is likely that the Executive Actions of President Obama will eventually be found to be lawful and constitutional. It is clearly in the interest of the individual DAPA and DACA beneficiaries in what may be a once in a blue moon opportunity to gain peace of mind for 3 years and to obtain an EAD work authorized status, social security card and driver’s license. Some may criticize the President by saying that after 3 years a new president may not extend the programs. That is very true and the reason that Congress should act now. Executive actions, no matter what side you’re on, are not a substitute for legislation.
Charles C. Foster, Chairman, Foster LLP, one of the largest immigration law firms in the world, senior policy advisor on immigration to candidate and President George W. Bush and President Barack Obama, Chairman Immigration Task Force of the Greater Houston Partnership and past president of the American Immigration and Nationality Lawyers.