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Article: President Obama’s use of executive discretion could have unintended consequences if Donald Trump becomes our next president. By Nolan Rappaport

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  • Article: President Obama’s use of executive discretion could have unintended consequences if Donald Trump becomes our next president. By Nolan Rappaport

    President Obama’s use of executive discretion could have unintended consequences if Donald Trump becomes our next president

    by


    If you are having difficulty viewing this document please click here.

    Reprinted with permission.


    About The Author

    Nolan Rappaport was an immigration counsel on the House Judiciary Committee. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration, and he has spent time in private practice doing visa petitions for the Catholic Church and international corporations at Steptoe & Johnson.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


    • Guest's Avatar
      #20
      Guest commented
      Editing a comment
      Originally posted by Stephen T Blower
      The point of my references to TPS and the CAA was not to defend or even make a direct comparison to DACA or DAPA. It was, in the case of the former, to show how the TPS law as executed by legacy INS and USCIS eschewed the interview process, in direct response to the criticism that a lack of an interview process was one of DACA's great weaknesses. The TPS law as written by Congress neither mandates nor excuses an interview process--so what does that mean for agency discretion? I am simply pointing out that it is inconsistent to say that a lack of an interview process in itself is a flaw when that clearly isn't considered so in another comparable, albeit Congressionally written, availability of a benefit. I'm aware of the history of the failure of the DREAM Act but I would not characterize that history in the same politicized way. The point of the reference to CAA is to point out a Congressional "blind spot" and Congressional political selectivity when it comes to certain immigration issues. In other words, immigration benefits as written by Congress don't always arise out of moral or humane concerns. The flip side of this is, an outcry over the undocumented is, by Congressional sanctioning, shielded from Cubans, because once a Cuban violates the law against illegal entry, he or she is immune to the consequences facing every other nationality. Unless you also believe that the "wet foot/dry foot" policy also is an unconstitutional overreach by the Executive Branch. Well nobody is complaining about that. That might make sense to politicians, but I daresay the public would find it baffling. When you refer to "deferred action agency regulations that existed before June 15, 2012" are you pointing to something in the Code of Federal Regulations or the Federal Register, or just internal policy regulations that would ordinarily receive Chevron deference? And will opponents of DACA still claim it is unconstitutional even if SCOTUS says it isn't?
      I understand and generally agree with you. However, I was part of the USCIS management review team that commented on the DACA proposal in July of 2010, nearly 2 years before the President announced it. I had been involved with deferred action cases for more than 30 years at the time. Deferred action was an internal policy from the 1950 until June of 2012. It required extensive interviews and a showing of hardship. The administration took a program intended for a small number of people and turned it upside down to fit a political goal. Even that might have been OK if it had been published in the Federal Register for public comment. From the 1950s until the John Lennon case in the 1970s, deferred action was printed on blue pages in our INS law books. That meant it was internal policy and not to be shared with the public. Lennon's attorney prevailed in federal court and got the past records of deferred action made public, approximately 1800 cases in a 20 years period. Afterwards the regulations were printed on white pages, moved to a different section of our law books, and made available to the public. I believe in the goal of DACA, but not in the way it was done. I will accept whatever decision the court makes on DAPA. I am not aware that DACA is being considered by the court since it was not challenged.

    • Guest's Avatar
      #21
      Guest commented
      Editing a comment
      Originally posted by Retired INS
      I understand and generally agree with you. However, I was part of the USCIS management review team that commented on the DACA proposal in July of 2010, nearly 2 years before the President announced it. I had been involved with deferred action cases for more than 30 years at the time. Deferred action was an internal policy from the 1950 until June of 2012. It required extensive interviews and a showing of hardship. The administration took a program intended for a small number of people and turned it upside down to fit a political goal. Even that might have been OK if it had been published in the Federal Register for public comment. From the 1950s until the John Lennon case in the 1970s, deferred action was printed on blue pages in our INS law books. That meant it was internal policy and not to be shared with the public. Lennon's attorney prevailed in federal court and got the past records of deferred action made public, approximately 1800 cases in a 20 years period. Afterwards the regulations were printed on white pages, moved to a different section of our law books, and made available to the public. I believe in the goal of DACA, but not in the way it was done. I will accept whatever decision the court makes on DAPA. I am not aware that DACA is being considered by the court since it was not challenged.

      I understand your position and why you see a disconnect. The provisions of the current DACA track many of the proposed terms in the history of the DREAM legislation going back to 2001 (5 years presence before date of enactment, arriving before age of 16, high school education, no particularly serious crimes or felonies) and for sure it from many quarters was and is a political gambit. It is, in the view of many an effort to force on to the Congressional floor terms of a benefit that almost exactly tracks the type of bill that has been proposed over the last 15 years. I understand that an unprecedented use and application of deferred action may seem shocking, inapplicable, unintended, and to many unconstitutional. But the picture of our immigration history, especially as it existed before 1965, and before 1987, and before 2001, and before today, all show an evolving and worsening crisis, one the government has not allocated anywhere near the resources to cope with properly. So no one can reasonably expect that the history of the deferred action policy will somehow temper or govern a completely different context of today's society. I think the President as much as acknowledges the unprecedented expansion of this authority when he says to Congress, if you have problems with it, pass a bill. Some may think that is extraordinary for a President to use the executive authority in this way, but it's not so unheard of, especially when Presidents for the last 60+ years have managed to embroil our military in international conflicts without *prior* consent of Congress, but almost always looking for the funding ex post facto. Isn't that a comparable political strategy, making an unauthorized commitment before making the argument for political consent? Congress hasn't declared war on any country or power since WWII, but they alone have the constitutional authority to do so. But everyone knows two things: DACA is in no way a means to any permanent end or solution, as all it does is provide temporary work authorization at the applicant's expense in exchange for their biographical information and a filing fee of $465. And that is a calculated risk, but one many feel they have no choice in making, by exposing themselves in this way to USCIS.
      The DAPA case before the Supreme Court includes the elements of the expansion of the DACA program proposed in November 2014 also: removing upper age limit restriction and some other items. Also USCIS had started issuing 3 year card renewals instead of 2 year, which the federal court in Texas immediately stopped and had all of those cards recalled, so no one currently has a 3 year renewal. The case before the court does not specifically address the initial DACA program of 2012, although the court could choose to say none of it is valid, which I don't see happening.
      I have met Mr. Wildes, Lennon's attorney. Accessing the internal policy information, specifically as it had been applied to Lennon, revealed deeply flawed biases and what was also described as an arbitrary and capricious application of policy. People obviously disagree with that assessment or whether anyone should have ever seen the workings of USCIS policy. Even that tends to demonstrate what I am getting at, though: the United States immigration profile nationally in 1974 bears little resemblance to today. How can that policy, or even many others, possibly be expected to continue to function solely in a way it was traditionally applied in a completely different societal context? So the policy, like the Congressional budget for Immigration Courts, gets pushed it to a breaking point. That there are an average of approximately 2000 cases in proceedings for each Immigration Judge demonstrates just how seriously Congress is committed to fixing even the enforcement side, although this President's administration has deported more persons than any previous one. The results of the DACA program demonstrated Congress's political backlash: the CIR legislation, after months and months of negotiation, crafting, and bipartisan efforts, passes the Senate 68-32, with Republicans joining will their colleagues to pass it by more than 2/3 majority. Then, Speaker Boehner shuts it down. The bill is not even brought to a vote, let alone go through a reconciliation process. There is no way, so the thinking went in the House, that this President should be "rewarded" for his actions. The response is purely political. The House doesn't even consider the merits of the bill, it doesn't even get a consideration. Is that to embarrass or punish the President? Obviously. Their response is as if they are saying they don't negotiate with terrorists. No way Republicans are going to allow this President to dictate terms or use a bully pulpit to press legislative agenda, especially since the Affordable Care Act was a grievous insult in itself, now (symbolically?) attempted to be repealed 60+ times.
      I think whether one agrees with the political strategy (which isn't so completely unprecedented in other non-immigration related contexts) of the President is acceptable or not, whether it makes the DACA recipients pawns in a political firestorm, even whether any of it is constitutional or not--the lack of functionality between the two branches and downright enmity on both sides has brought the entire system to utter dysfunction. That Congress allows preference categories on both the family-based and employment-based sides, formulas unchanged in 50 years, to reach dozens of years in some cases shows a perpetual unwillingness on the part of Congress to address the changing demands of American society when it comes to even legal immigration. The losers in this political war are the intending immigrants on the legal side, AND those brought here as small children and through no fault or intentionality of their own, AND then all those Americans who have no real grasp of the way the system works, its limitations and realities, who manage to form plenty of opinions about "illegals," AND any path forward to reconcile the political differences on both sides. Everyone loses. Maybe the President's political gambit was flawed: but Congress has a constitutional and moral responsibility to pass legislation that reflects the needs of our current society, not ignore the problem and continually find reasons or blame someone else as why they do nothing. And what was the first thing Paul Ryan announced, after his "making a clean slate" speech? NO IMMIGRATION bill while Obama is President. And now, possibly NO NEW SCOTUS Justice while Obama is President. Why doesn't Congress just shut down until next January 20th? The saddest part of the article this entire thread is related to is the "threat" that, when the political winds shift, rather than pushing for change under the guise of benefits, it will seek political capital by destroying and undoing all that came before with the rationale that the executive now has such unprecedented authority. It reminds me of Alfred Nobel's invention of dynamite for drilling and mining immediately gets turned around and used for armaments. The political "weaponizing" of a program --DACA-- that beneficiaries only see as something that was meant to help them, and opponents now warn of looming political menace.

    • Guest's Avatar
      #22
      Guest commented
      Editing a comment
      Despite my opposition to DACA and DAPA on policy grounds, I am assisting a non-profit agency to register those who qualify for DACA, and for DAPA if the Supreme Court reverses the Texas court's ruling. Very few immigrants eligible for DACA are applying because of fear their information will be used against them. Many who have applied in the past are now changing their address so ICE cannot find them should a new President want to deport them. I believe in the Dream Act and also believe we need an agricultural worker bill. I am a Republican who thinks most Republicans are wrong on immigration, and Democrats only act when: (1) they can embarrass Republicans; and (2) they can pretend to want to help Hispanics, but know nothing will happen to solve the immigration problem. Both Republicans and Democrats like some issues to stay around to bring out their base.
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