It’s a Fine Executive Order, But What Will the 2017 President Do?

Obama immigration speechMany immigrant groups have expressed disappointment that President Obama’s Executive Order of November 20, 2014 did not go further in easing the lives of immigrants within the United States.

Latino groups, for example, would have liked to see relief for farmworkers, LGBT groups would have liked to see relief for those without family relationships to draw on, and young beneficiaries of Deferred Action for Childhood Arrivals (DACA) would have liked to see their parents and other non-DACA-eligible family members receive derivative benefits, such as a work permit and similar protection from deportation.

But I’m impressed that the order went as far as it did, basically stopping just short of granting any new, permanent legal status to non-citizens of the United States. Doing so is traditionally seen as the role of Congress, though the exact line between the president’s and Congress’s power over immigration matters has never been clearly drawn. (For a full legal analysis, see “The President and Immigration Law,” by Adam Cox and Cristina Rodriquez.)

The expansion of the provisional waiver program, for example, is a huge fix to what was essentially a procedural inequity, allowing adult children of U.S. citizens as well as spouses and children of lawful permanent residents who were living in the U.S. unlawfully and not among those allowed to file paperwork here, but too scared to leave to collect the green cards they were otherwise eligible for, to file a waiver request and obtain assurance before their departure that they’d be allowed back into the United States. (Sorry, there’s just no way to make that brief and easy to grasp. Put another way, the provisional waiver allows them to apply for a waiver of their unlawful presence in the U.S. before, not after taking the risk of departing and then being barred from return. Is it any wonder the press and public seem a little unclear on the details?)

For more on this and other changes made by the Executive Order, see Nolo’s update, “President Obama Announces Executive Action on Immigration.”

The bottom line, however, is that an executive order can be easily undone by the next executive — and we don’t know who will succeed President Obama after the 2016 election. Immigrants are plenty aware of this fact. That’s why far fewer young people applied for DACA relief than were eligible or expected.

If it’s true that young people have a sense of invincibility, then one might argue that the new group of deferred-action-eligible people created by President Obama’s order — parents of U.S. citizens and permanent residents — might be even less willing to say, in effect, “Hey look, I’m here illegally, here are my name and address for your files!”.

They know, better than many of the opponents of the President’s order, that neither DACA nor the new Deferred Action for Parental Accountability (DAPA) program is in any way an amnesty. Neither program offers a path to a green card — DACA and DAPA provide only a work permit and a short-term promise that those approved won’t be deported. As stated to the National Journal by Marc Rosenblum, deputy director of the Migration Policy Institute’s U.S. Immigration Policy Program, “Those who have a stable job and aren’t looking for a new one might decide it’s safer to keep their names off the government’s books.”

The one thing that every group representing, or even interested in the fate of immigrants and refugees in the U.S. seems to agree on, is that Congress needs to get its act together and actually pass immigration reform. That will no doubt fall short of providing the relief that everyone hopes for too, but at least it will offer some certainty.