A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Monday, December 8, 2014

Challenges to the President's Immigration Reform Plan

President Obama's "immigration accountability executive action,” which includes a series of government acts to reform and change the nation's immigration system, has been challenged by the Republicans and conservatives as being too lenient, unilateral, or outright illegal.  They argue that these actions, especially the expansion of the current Deferred Action for Childhood Arrivals (DACA) program, and the new deferred action program for undocumented parents (DAPA), violate the U.S. Constitution and will encourage a new wave of illegal immigration to the United States.

Politically, the reaction of the Republicans and conservative members of the Congress is understandable.  They need to demonstrate to their constituents that they are doing something to respond the President's executive actions.  In fact, on December 4th, the House of Representatives passed a bill to block President Obama's executive actions.  This bill, however, is more symbolic in nature, as it will not likely be taken up by the Senate, which is still being controlled by Democrats. Further, the President can also exercise his veto power if the bill ever reaches his office.

Similarly, eighteen (18) states filed a lawsuit challenging President Obama’s immigration plan last week.  These states are mostly governed by Republicans.  They also argue that the President does not have the legal authority to take actions to change the immigration policy.  Further, these states argue that the new actions will result in substantial state spending in health care, education and law enforcement.

On the issue of legality, more than 100 law professors and scholars from the nation's law schools including Harvard and Yale have authored a joint letter on November 25, 2014, endorsing the President's DACA and DAPA plans as being within the legal authority of the executive branch of the government of the United States.  In fact, similar executive actions on immigration have been taken before by former U.S. Presidents including Presidents Reagan and George Bush Sr., both Republicans.  The U.S. Supreme Court has also recognized the executive branch's authority and need to exercise discretion in the enforcement of the immigration laws.  See Reno v. American-Arab Anti-Discrimination Committee,  525 U.S. 471 (1999); Arizona v. United States, 132 S. Ct. 2492 (2012). The President's deferred action plan is merely an exercise of his prosecutorial authority; it defers enforcement action for three years but does not grant any permanent legal status to the applicants.

The states' argument that they will have to spend substantial amount of additional social resources under Obama's immigration plan is far from clear cut.  Even under the current law, children are guaranteed a public education from kindergarten through 12th grade, regardless of their immigration status.  This right to education was upheld by the U.S. Supreme Court in the landmark case of Plyler v. Doe in 1982.  Further, certain health care services such as emergency room visits are already available to unauthorized immigrants.

On the issue of law enforcement, the new plan may actually bring about positive changes. The new plan will bring the illegal residents out of the shadow and register them in the system.  These changes will make it easier for police officers to enforce the law and create safer communities.  In fact, mayors from metropolitan cities with large immigrant population such as San Francisco, Los Angeles, Houston, New York, etc., all embrace the President's executive actions.  They believe the new plan will "strengthen [their]cities, keep families together, grow our economies and foster additional community trust in law enforcement and government."

In sum, challenges to President's immigration reform plan will likely continue.  But so far, they represent more like political rebuke than real threats to the plan. 

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