Pages Menu
Categories Menu

Posted by on Mar 17, 2015 in Uncategorized | 0 comments

Immigration, Legislation, and the Tension Between the Two

By Edith Hinson

Since word got out at the beginning of November that the President was going to speak on the issue of immigration, pundits from both sides began speculating as to what he would say. After all – what could he say? The proposed immigration legislation had been stalled in the House for over a year by that time[1]; and yet the crisis had just come to head with an unprecedented number of children crossing into the U.S. on their own. [2] The problem was begging for attention, but the legislators wouldn’t give it any. So, in an exercise of his executive power, the President decided to take the problem into his own hands and make swift decisions about how to prioritize enforcement of our current laws in a way that is realistic, progressive, fair, and legal.



The Backdrop


“Our immigration system is broken…”[3]


No matter which side of the issue you fall on, the fact that the current set of laws on the books is being neither followed nor enforced demonstrates that the system just plain isn’t working. Whether it’s because those breaking the rules aren’t being punished; or whether it’s because the conditions of the immigrants’ home countries are getting so bad that it’s worth the risk of punishment, the result is the same. Non-citizens are here in America, and we can either ignore it, or deal with it.


“A bipartisan bill [passed] in the Senate, but…the House refused…to vote [on it.]”[4]


Immigration reform was a key objective of Obama’s platform for election.[5] And pursuant to his promise to make it a priority, he advocated for the DREAM Act, which would have granted a pathway to citizenship for certain young immigrants who are seeking education and self-improvement.[6] After intense debate in the Senate, members of both parties came up with a draft they could all live with. They passed it, and sent it over the House. However, key leaders in the House of Representatives have since stalled the bill, refusing to allow it to go to a vote.[7] So the President was pushed into a corner: How does he make right on his promise to reform when the legislators won’t work with him?


The Executive Order


With intense pressure from both sides of the aisle to do something about the immigration crisis, and with the refusal of Congress to act in such a way that allowed for progress, the President chose to announce new enforcement priorities rather than hold his breath until the House of Representatives stopped bickering with each other.


Through the executive order, the President is not able to write laws. Rather, he looks at the framework of the current laws, and announces to the enforcement personnel on the ground how the laws should be executed in practice. And members of the executive branch do this all the time. Think about that time you sailed right by a state trooper going 50 m.p.h. in a 45-zone, and the officer didn’t bother to you stop you. Or that time your cousin got caught underage drinking, and attended an Alcohol Assessment class in order to get the prosecutor to dismiss the charges. These are all examples of the discretion allotted to the executive branch.[8]




The Reason We Allow for Discretion


It all comes down to the bottom line: money. We simply don’t have the money, the resources, to enforce every law on the books to the “T.” Therefore, law enforcement—i.e. the executive branch of the government—must decide how to best enforce the laws we have with the resources we have.


The President summed this up very succinctly in his Nov. 20 speech when he said, “Let’s be honest—tracking down, rounding up, and deporting millions of people isn’t realistic.”[9] In other words, we just plain don’t have the resources and personnel to do such a thing. So then if our laws require something that we are literally not able to do, shouldn’t we amend them? In theory, yes. But in practice, this doesn’t always happen. There are still laws on the books today that are neither enforced nor are on the agenda to be amended. They don’t necessarily need to be revoked or amended, because they are simply no longer enforced—i.e. don’t tie your giraffe to a phone pole, list other laws here, etc. Government officials don’t see a reason to take action on these stale laws, because they’re not doing any harm. But there has to be direction given to law enforcement personnel (police officers and prosecutors alike) to let them know it is no longer a government priority to enforce X law. So here, what the President did was give consistent direction to the enforcers of our laws how to best do their jobs.


The Plan


So this is what he said:


  • Enforcement personnel on the border will be allotted more resources.
  • High-skilled immigrants who demonstrate a clear benefit to our economy will have an easier time getting here than those with fewer skills to offer.
  • Non-criminal immigrants with American children who have been in the U.S. for more than five years and are paying taxes will receive temporary stay from deportation.[10]


So what does it really mean?


President Obama explained the gist of the plan in one sentence: “If you’re a criminal, you’ll be deported. If you plan to enter the U.S. illegally, your chances of getting caught and sent back just went up.”[11]


The Impact


So what’s the message? To law enforcement personnel within the country, it lets them know that they can spend their time and energy on locating criminals, and getting them out of the country. To border enforcement personnel, it lets them know that they’re going to get more money to keep up the hard work. After all, since Obama has taken office, border crossings have been cut by more than half.[12] So with more resources headed their way, illegal crossings will be further stemmed. And with direction given to the internal enforcement personnel, criminals will be deported and the country will be safer.


It is important to recognize that nothing that President Obama announced on November 20 is written in stone. The relief from deportation that he gave to non-criminal immigrants is contingent on their staying out of trouble; expires in three years; does not lead to permanent residency or citizenship; and is revocable at the will of the executive who is elected into office next year. It is truly nothing more than an announcement of the priorities that law enforcement officers are to follow, as recommended by the top law enforcer in the nation.


In a way, calling the President’s announcement “reform” is a misnomer. In no way does it reform our system, but perhaps it will be instrumental in reforming our way of thought. Once criminals are separated from non-criminals, newbies are separated from old-timers, and the skilled workers are separated from the unskilled, it may be easier to quantify the benefits and detriments of our current wave of immigration. Absent legislation, however, the piece-meal approach as effected by executives will be the best bet we have to modifying the system to meet our current needs.




[4] Id.




[8] U.S. Constitution, Art. II, Section I.


[10] Id.

[11] Id.