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Last Thursday President Obama announced that he was taking executive action to resolve part of the nation’s pressing illegal immigration problem.  The President’s executive order will allow up to five million illegal immigrants to obtain work permits, thereby allowing them to legally stay and work in the United States for the next three years.  This is nearly half of the country’s illegal immigrant population, which is estimated to be more than eleven million people.  The President’s defenders argued that executive action had to be taken because Congress has failed to solve the illegal immigration problem over the last several decades, but opponents argued that the order was an abuse of executive power and that it would harm bipartisan cooperation for the next two years on Capitol Hill.

This topic brief will provide a quick overview of America’s illegal immigration problem, discuss the actions taken by President Obama last week, and breakdown how the President’s executive order will affect the political landscape in the short-term and for 2016.  Extempers are highly encouraged to read last season’s topic brief on comprehensive immigration reform to get a more sufficient understanding of the politics surrounding immigration policy.

Readers are also encouraged to use the links below and in the related R&D to bolster their files about this topic.

America’s Illegal Immigration Problem

The United States has had an illegal immigration problem since it decided to enact immigration controls during the nineteenth century.  The federal government took an interest in immigration in 1882 when it passed the Chinese Exclusion Act that barred a sizable number of immigrants of Chinese origin from settling in the United States.  That same year, the American government also barred future immigrants from entering the country who had criminal records and/or were mentally ill.  The pull factor of agricultural work triggered Mexican and Central American immigration into the United States, much of it seasonal, during the twentieth century, but some of these immigrants opted to live illegally in the United States, never obtaining legal documents to work in the country.  The federal government tried to remedy this problem in 1986 by passing the Immigration Reform and Control Act (IRCA).  This legalized 2.6 million illegal immigrants and legally required employers to check the legal status of their workforce under threat of fines of up to $10,000 per violation.  However, IRCA proved ineffective in resolving the illegal immigration problem as the North American Free Trade Agreement (NAFTA) devastated the Mexican agricultural sector and sent low wage workers north.  In addition, violence and corruption in the Mexican government, as well as its Central American counterparts, provided the impetus for scores of immigrants to head for the United States, which experienced a profound economic boom during the 1990s.  Thus, due to geopolitical and economic factors, the number of illegal immigrants coming to the United States increased, rather than decreased, after the federal government’s last attempt at comprehensive immigration reform.

The Pew Research Center estimates that as of 2012 there are more than 11.2 million illegal immigrants residing in the United States.  This is down from 12.2 million illegals that lived in the United States prior to the Great Recession in 2007.  However, that is still a sizable increase from the 3.5 million illegals that lived in the United States in 1990.  As Pew explains on November 20, two-thirds of the illegal immigrants residing in the United States come from Mexico and Central America.  Illegal immigrants of Mexican origin are roughly half of the entire illegal immigrant population.  El Salvador ranks second with 675,000 illegal immigrants and Guatemala has 525,000.  Extempers should realize that illegal immigration is not just a Mexican or Central American problem, though, because Pew notes that America has 450,000 illegal immigrants from India, 300,000 from China, and 200,000 from the Philippines.  Sixty percent of illegal immigrants live in six states:  California, Texas, Florida, New York, New Jersey, and Illinois.  These states are some of the most economically productive in the country and have significant numbers of Latinos in their metropolitan centers.  The Economist writes on November 20 that if America’s illegal immigrant population was placed into one state it would be the eighth most populous in the country behind Ohio.  The size of the illegal immigrant population affects American society as Pew reports that children with at least one illegal parent make up 6.9% of the American K-12 student population and that illegals are 1/20th of the U.S. workforce (8.1 million people in 2012).

It would be easy to assume, based on media reports, that President Obama has done little to rein in the numbers of illegal immigrants coming to the United States.  After all, in 2012 President Obama announced the Deferred Action Childhood Arrivals (DACA) program that deferred deportation for young illegal immigrants that were brought into the United States as children.  This problem established an age cap at thirty-one and those applying for protection had to have lived in the United States since January 2007.  The Wall Street Journal on November 20 reveals that as of June, 580,000 so-called “dreamers” have enrolled in this program.  Critics of the administration argued that the establishment of DACA is what spurred a wave of child migrants from Central American countries earlier this year, as smugglers and parents trafficked children toward the American border in hopes that they would also be accorded federal protection.  Nevertheless, The Economist writes that President Obama has taken significant actions on immigration that are not always reported.  For example, even though the Border Patrol has apprehended fewer illegal immigrants since 2000, that is not due to administrative interference.  Instead, the numbers are falling because fewer people are illegally crossing the border and stronger border protections have been put in place.  The Economist notes that funding for the Border Patrol has grown over the last twenty-three years from $262,000 in 1990 to $3.5 million last year.  The budget for the Border Patrol is bigger than the combined budgets of other law enforcement bodies such as the Federal Bureau of Investigation (FBI), the Drug Enforcement Agency (DEA), the U.S. Marshals Service, and the Bureau of Alcohol, Tobacco, and Explosives (ATF).  The President has also deported 370,000 illegals, more than his predecessors, but part of this is due to the fact that the Department of Homeland Security (DHS) now includes illegal immigrants nabbed at the border – instead of just totaling those deported from the interior of the country – as part of the deportation total.  The Wall Street Journal article previously cited points out that 133,551 illegals were deported from the U.S. interior last year and 82% had prior criminal convictions.  Targeting illegals with criminal records has been an administrative priority and the President has doubled down on this as part of his executive order to deal with the problem.

Public opinion polls show that the country is concerned about illegal immigration and wants the federal government to do something about it.  Americans recognize that illegal immigrants are prone to abuse from employers, who can hold the lack of their legal status over their heads, and worry about these immigrants, who are often low-skilled, taking jobs from other Americans.  The Christian Science Monitor reports on November 20 that 57% of Americans in a recent NBC News/Wall Street Journal poll said that they favor a pathway to citizenship for current illegal immigrants and 74% of Americans believe that this pathway to citizenship should include a fine, a payment of back taxes, and the passing of a criminal background check.  However, public opinion begins dividing when you get into the nuts and bolts of what “comprehensive immigration reform” means.  According to that same Christian Science Monitor article, 48% of Americans do not believe that President Obama should be the sole actor in resolving the illegal immigration mess.  63% of Americans favor Congressional action and compromise, but disagree about whether the eventual bill should allow illegal immigrants to eventually become citizens or merely obtain legal status.  The difference between the two is that citizenship rights convey the right to vote, whereas those with legal status would avoid deportation but never be able to cast ballots in local, state, or national elections.  Much of this divide is partisan as the Pew Research Center finds that 82% of Democrats favor a pathway to citizenship for illegals versus a slim majority (52%) of Republicans.  Latinos care more about immigration than other parts of the U.S. population, with 66% of Latinos saying that they see the immigration issue as very important or extremely important versus 61% of Americans at large.  Latinos largely favor some action on immigration to remove the threat of deportation from themselves, their families, or friends and 57% of them argue that a bill that gives them residency is preferable to the more controversial option of giving them citizenship.

America’s political parties are divided on the immigration issue, which is why a comprehensive immigration reform package has failed to pass Congress.  President Obama blew a significant opportunity during his first term when the Democrats had control of Congress as an immigration package could have passed a Democratic-controlled House and a filibuster proof Senate (where it could have also won Republican votes).  President George W. Bush was close to a bipartisan immigration deal in 2006, but grassroots pressure on Republicans derailed that effort as well.  Democrats support a comprehensive immigration deal in hopes that new Latino voters will become part of a permanent Democratic majority at the national level.  As The New York Times writes on November 20, Latinos are the fastest growing voting demographic in the country and Republican presidential candidates have won a declining share of the Latino vote since 2004.  The New York Times also notes that 66% of Latinos in recent polls believe that the Republican Party is hostile to them, so Democrats are hoping to capitalize on this to permanently control Congress and the executive branch.  Republicans are under pressure from business interests to support comprehensive immigration reform as the Chamber of Commerce favors a policy that would allow more low wage labor into the country.  However, Republicans face mutual pressure from activists that fear the political impact of legalizing millions of new, largely Latino voters and argue that the country is losing its European heritage.  Last summer, the Senate passed a bipartisan immigration deal on a 68-32 vote that would have provided a pathway to citizenship for millions of illegals, while simultaneously improving the funding and staffing of the Border Patrol.  This effort failed, though, when the House Republican leadership refused to allow a bill to come to the floor.  If they had, enough moderate Republicans would have crossed over to vote with Democrats to pass it.

President Obama’s Executive Order

Claiming that Congressional inaction on immigration forced his hand, President Obama announced the signing of a sweeping executive order last Thursday that will change some of the enforcement of existing immigration law and take steps to increase security along the country’s borders.  The BBC on November 21 writes that the biggest element of the executive order is allowing the parents of children who are illegal immigrants or legal residents (these are children who were born in the United States to illegal immigrant parents and are thus American citizens) to obtain work permits that will last for three years.  Parents must have lived in the United States for five years in order to qualify and they must pass a background check, provide documentation that their child was born before last Thursday, and pay a fee.  This element of the order is expected to apply to 3.7 million people.  It is important to remember that this does not provide a pathway to citizenship for illegal immigrants in the United States.  It does not even constitute a long-term “amnesty” that permanently allows these people to remain in the United States.  It merely allows those residing in the United States illegally to live without fear of deportation and obtain legal work protections and opportunities.  After three years, these immigrants can apply for a new permit, but federal law could change by that time and could even nullify this element of President Obama’s order.  For those illegal immigrants who do not have children, they are not covered by this plank of President Obama’s executive order.

A second element of the plan is that the DACA program will be expanded to another 300,000 children (1.2 million were currently protected under the program before the recent executive order).  As the BBC writes, the DACA age limit will be abolished and all illegal immigrant “dreamers” who arrived in the United States as of 2010, instead of 2007, will be eligible to apply for the program.  The Houston Chronicle reports on November 20 that the DACA expansion will not apply to the parents of these children, as the Obama administration concluded that it did not have the executive authority to tweak that element of existing immigration law.  Extempers should keep in mind that the DACA expansion will not apply to the wave of children from Central America that arrived on the Southern border earlier this year, as the expansion only goes back to 2010.

Other elements of the executive order will change existing methods of immigration enforcement along the border and the deportation of certain groups of illegal immigrants.  The administration is seeking to end long delays in immigration courts and as The Washington Post writes on November 20 to prioritize deportation cases that concern illegal immigrants that have committed serious crimes.  The Guardian on November 20 reveals that this tweak of immigration enforcement hopes to solve American national security problems while not prosecuting those illegal immigrants who have peacefully resided in the country for the last several years.  The Secure Communities Initiative, which called on local police forces to verify the legal status of those who requested police assistance and were arrested, is also ending.  As The Washington Post writes, some of America’s largest cities refused to cooperate with the federal government on this initiative and it hindered the ability of law enforcement to work in communities with large numbers of illegal residents, thereby allowing violent crime to flourish.

The executive order will also provide some assistance to America’s tech industry, which has lobbied for more visas for foreign-born students to work in the United States.  As The Washington Post writes on November 20, the order will help foreign students and recent graduates of American universities obtain jobs in STEM (science, technology, engineering, and math) fields by expanding the Optional Practical Training (OPT) program, which enables foreign-born students to remain in the United States for twenty-nine months.  The Post says that implementing this part of the executive order will require greater cooperation between the Department of Homeland Security and American universities because the existing program has been criticized for having very little oversight.  Another element of the executive order pertaining to the tech industry will make it easier for foreign-born entrepreneurs to open a business in the United States by enhancing the O-1 visa program.  Still, the order does not increase the number of H1-B visas, which are capped at 65,000 by Congress, which allow other high-skilled workers to immigrate to the United States.

Together with the work permit program and the deferred deportation of minors in DACA, the executive order will cover nearly half of America’s illegal immigrant population.  As the BBC article previously cited notes, 6.2 million illegal immigrants will not qualify under the President’s order, thereby continuing to live in legal limbo.  Time on November 20 has a great map that shows the impact of the President’s executive order.  Texas and California are the states that will be most affected by the President’s plan as California will have 1.5 million people granted deferred deportation and Texas will have 743,000.  New York rounds out the top three with 338,000 people affected by the executive order.

Some Latino activists argue that the President’s executive order did not go far enough because it only concentrated on sheltering illegal immigrants who had children in the country.  They also argue that a three year work permit is not long enough and the tentativeness of the order, which could be changed by a future president, may cause some illegal immigrants who do qualify to remain in the shadows.  As the Brookings Institution reveals on November 20, some of those who qualify under the existing DACA program have not applied because they fear exposing themselves to authorities or cannot pay the application fee.  Therefore, the President might aim to change the lives of millions of illegal immigrants, but it is very likely that less than the expected number will apply under the program.

Roll Call on November 20 also notes that the President’s executive order will create a bifurcated system of immigration enforcement whereby those who illegally came into the United States more than five years ago will be left alone as long as they do not commit serious crimes, while those who have recently tried to cross the border will be vigilantly prosecuted by border authorities.  It is unclear whether this approach will work, but you can definitely see that President Obama is trying to strike a middle ground between winning over Latino voters and strengthening the border so as not to appear weak on national security.

The Political Impact of the Executive Order

Republicans were quick to criticize the President’s unilateral action on immigration, saying that it was a power grab.  Speaker of the House John Boehner (R-OH) argued that the President was trying to become an “emperor” and that his executive order “cemented his legacy of lawlessness.”  Other Republicans argued that the President’s unwillingness to give the new Congress a chance to work on immigration legislation will poison any chances of bipartisan cooperation after the 2014 midterms.  Incoming Senate Majority Leader Mitch McConnell (R-KY) lamented that it does not appear that the President is interested in working with a Republican Congress from the center and that he appears to want to continue governing as a leftist.  However, nothing President Obama did was illegal.  The Brookings Institution notes that executive orders are merely policy changes to federal law and the courts have granted the executive branch broad power over immigration law.  While the executive cannot pursue something such as a comprehensive immigration project, it can use the regulatory powers of the federal government and use executive discretion regarding the enforcement of immigration law.  The Houston Chronicle previously cited also notes that President Obama is not the first president to use an executive order to defer deportations of some immigrants as President George H.W. Bush in 1990 delayed the deportations of 1.5 million illegal immigrants – 40% of the illegal immigrant population in the United States at the time – who were the spouses and children of those granted amnesty under IRCA.  Still, an executive order can be overturned by the next administration, so it is not a lasting, or permanent, solution to America’s illegal immigration problem.

Republicans who are angry over the President’s decision can follow several different strategies.  First, they can make overturning the executive order a centerpiece of their 2016 presidential campaign.  However, that might backfire.  Mitt Romney ran in 2012 on a platform of trying to get illegal immigrants to deport themselves and that attitude, which was considered uncaring by Latino political commentators, caused him to lose a sizable chunk of the Latino vote to the President, thereby doing significant damage to his hopes of winning swing states.  Republicans have also toyed with the idea of defunding elements of the federal government that would be tasked with carrying out the President’s plan.  However, this will prove difficult.  The Christian Science Monitor on November 20 writes that Congress does not appropriate funds for the Citizenship and Immigration Services (CIS) agency that will handle much of the execution of the President’s executive order.  CIS receives most of its funding from application fees, so the GOP would have to try to defund the entire apparatus of the Department of Homeland Security (DHS) in order for CIS to halt its operations.  The problem with this, though, is that it could produce chaos in enforcing other national security priorities that the DHS is in charge of, such as airport security, and that could create a voter backlash.  The National Journal writes on November 20 that a new authorization bill of the CIS would have to be crafted to specifically defund elements of its operations, but President Obama would likely veto such a bill.  Furthermore, the bill would probably die in the Senate as it is unlikely that the GOP could overcome a Democratic filibuster of the legislation.  Senator McConnell does not have the stomach for another government shutdown over immigration and will probably fend off conservative efforts to refuse to pass short-term and long-term budget measures to keep the government open.  Republicans suffered the most politically from the last government shutdown in the fall of 2013, so do not look for them to take this step.  Additionally, Reason writes on November 20 that a government shutdown would hurt the economy because employers would not be able to access the E-Verify service to check the citizenship status of potential employees.  During the last shutdown, some businesses refused to hire new workers because they could not verify their legal status.  Therefore, a shutdown could prohibit some employers from hiring and thereby disrupt employment patterns (albeit for a short amount of time because government shutdowns are never lengthy affairs).  Based on this evidence, I would advise extempers to answer “no” to any potential questions in the next two months about whether the GOP should try to defund elements of the President’s immigration strategy.  Politically it is just not feasible.

However, the Republicans could engage in other elements of obstruction and this is where the President’s executive order could make national politics more dysfunctional over the next two years.  President Obama hopes to get Loretta Lynch confirmed to replace Attorney General Eric Holder, but Republicans associated with the Tea Party, such as Texas Senator Ted Cruz, are threatening to block her nomination if she does not criticize the President’s action on illegal immigration.  As The Christian Science Monitor reveals on November 20, Cruz has called for blocking all of President Obama’s nominees if he does not back off of his executive order.  A Republican refusal to confirm President Obama’s nominees for the executive or judicial branches could become the defining issue of the next Congress.  The 2016 presidential election could become a referendum on who is most responsible for gridlock in Washington and it is unclear who might win that battle.  History shows that presidents tend to come out ahead in these situations, the most prominent example is President Harry Truman winning the 1948 presidential election by chastising a “do nothing” Republican Congress that was blocking his agenda.

Still, the President’s decision to act unilaterally on immigration could have serious consequences for the Democratic Party and his public image.  The Economist on November 22 notes that President Obama’s wide sweeping action on immigration could undermine the public’s faith in government, which is already quite fragile.  The President has had a tendency to say one thing in public and then do another throughout his tenure in office.  For example, he drew a “red line” in Syria last year and then told reporters months later that he never drew a red line.  On immigration, the President told activists several years ago that he did not have the power to legalize large segments of the illegal immigrant population, yet he has enacted a version of legalization through his new executive order.  These missteps on public policy pronouncements, highlighted by the President’s argument that if Americans liked their insurance policies then they could keep them as part of the Affordable Care Act (ACA), have served to undermine the President’s credibility and probably played a role in the outcome of the 2014 midterms, which were contested in places that the President is already unpopular.  Fox News on November 20 writes that the President’s actions go too far and distort prosecutorial discretion.  While that is debatable, Americans are uncomfortable with the President taking unilateral action on a pressing social issue and it can cut both ways.  The Week asks on November 18 that if the executive can justify broad changes to immigration enforcement, could a future president rewrite elements of the tax code via fiat?  Since President Obama has been tweaking elements of the ACA in regards to delaying the enforcement of the employer mandate – something that has been constitutionally challenged by Republicans – his action on immigration fits into a conservative narrative that he is out of control.  Coming out of a midterm election when Democrats were thrashed, the President also risks appearing out of touch with the electorate, which could make for a bumpy two years as the President tries to craft his legacy.

The President’s decision might energize Latino activists, but it will probably also energize conservatives.  This is important for the Louisiana Senate runoff in a few weeks, where Democratic Senator Mary Landrieu appears headed for defeat.  The Democratic Senatorial Campaign Committee (DSCC) has already pulled millions of dollars in advertising for Landrieu and recent polls after the President’s announcement show her down by double digits.  The other issue that could become a problem for Democrats is how working class white voters, those who are still part of organized labor and have a stake in the Democratic Party, and African Americans react to the decision.  The share of white working class voters who sided with Democrats declined in the 1970s as the party veered to the left and ended up on the wrong side of public opinion with regards to the “culture wars.”  Bill Clinton’s moderation brought these voters, who were part of the “Reagan Democrats” of the 1980s back into the fold, but their opinion about the President has been mixed.  The auto bailout was a coup for the administration in winning over organized labor, but for unskilled white workers, there are anxieties about what an influx of millions of Latino workers means for their economic security and their jobs.  As the economy still grows at a slow pace following the Great Recession, these employment anxieties have continued to grow and African Americans have the same concerns.  Conservative African Americans have accused the President of harming the black community, saying that unskilled illegal immigrants who will obtain work permits under his executive action will take jobs away from African Americans, especially African American males.  All of this is not to argue that in the next presidential election African Americans will suddenly gravitate to the Republican Party.  However, these economic anxieties might play into the hands of a Republican candidate, someone such as Rand Paul for example, who makes a concerted effort to reach out to African Americans and the white working class.  If the Democrats share of either the white working class or African American vote falls, they could be in major trouble in swing states in 2016, so the Democratic Party will have to sell the President’s executive action as a necessary, yet beneficial step for all Americans and not just a certain ethnic group.

Finally, it is unclear whether the President’s executive action will help create the momentum for a comprehensive immigration deal in the next Congress.  The likelihood is that Republicans do not take up the cause for fear of antagonizing elements of their base, thereby giving the Democratic presidential nominee and its Senate candidates the opportunity to campaign on a pledge of enacting a wider package.  Even prior to the executive order, it was very unlikely that a comprehensive deal would be struck, but whatever odds did exist now appear to be nonexistent.  After all, Arizona Republican Senator John McCain, who has been a supporter of comprehensive immigration reform throughout his career, criticized the President’s decision to act unilaterally.  Thus, it appears that President Obama’s executive order will be the only action on immigration over the next two years, which is unfortunate because the illegal immigration problem is not going away and politicians cannot continue to kick the can down the road and hope that the problem solves itself.