As the 113th Congress comes to an end, so does the closest chance that we have had to passing comprehensive immigration reform in over a decade. The prospects for immigration reform that includes a path to citizenship in the incoming 114th Congress are dim. On the bright side, President Obama’s executive actions on immigration will be implemented in 2015, including expanded DACA and the new deferred action for parents program (DAPA), which could grant deportation relief for up to 5 million people. US Citizenship and Immigration Services is expected to begin accepting applications for expanded DACA in February and DAPA in May 2015.
President Obama’s executive action on immigration is likely to face challenges in the upcoming Congress; however, any efforts to block the President’s immigrations actions are likely to be largely symbolic because Congress lacks the vote to override an expected Presidential veto. In the last couple of weeks, Congress passed and the President signed the omnibus appropriations bill which funds all government agencies through FY 2015, except for the Department of Homeland Security (DHS). DHS was separately funded until February, when the Department’s budget will be reconsidered. House Republican leadership chose to only fund DHS for two months to give them another opportunity to block the President’s immigration executive action.
In the Senate, Senator Rand Paul (R-KY) filed a bill in an attempt to prevent the President from implementing his deferred action programs for undocumented immigrants. The “The Preventing Executive Overreach on Immigration Act,” is the companion legislation to Rep. Yoho’s (R-FL) bill, H.R. 5759, with the same title, which passed the House two weeks ago. Paul’s bill would prevent the Administration from implementing the DAPA program (the program which will allow parents of US citizens and lawful permanent residents who have been living in the US since January 1, 2010 to apply for deferred action and work authorization). The bill would also prevent the Administration from processing any new DACA applications, effectively terminating the program.
The Senate Judiciary Committee also held a hearing titled, “Keeping Families Together: The President’s Executive Action on Immigration and The Need to Pass Comprehensive Reform.” Prior to the hearing, UFW member Raul Esparza de la Paz participated in a press conference with Senators and other impacted community members. De la Paz said that he has one adult child who has already benefited from DACA and that he and his wife and 2 of his adult children will now be able to benefit from deferred action, removing the fear of immigration enforcement that they currently live with. De la Paz urged Congress to support the executive action on immigration and work to pass comprehensive immigration reform.
In addition to challenges from Congress, President Obama’s immigration actions are facing legal challenges from the courts. On Tuesday, in an overreach of his authority, a federal judge in Pennsylvania took it upon himself to declare Obama’s executive action on immigration unconstitutional in a court opinion that provided no basis for him to issue such a decision. The judge, Arthur Schwab, did not order the Administration to stop implementing the executive action and his ruling has no legal effect on it. The decision has been criticized because the constitutionality of the case was not at issue: neither party had argued that the President’s actions are unconstitutional nor had they briefed the court on the issue. Ilya Somin, a law professor at George Mason University writes in the Washington Post that the court opinion’s discussion of the executive action was brief and poorly reasoned. The Huffington Post reports that Judge Schwab has a checkered past. He has been removed from two cases by the 3rd Circuit Court of Appeals, in 2008 and 2012, a move that is rare and considered to be a disciplinary action.
There are also two pending constitutional challenges to the President’s administrative action. As mentioned in a previous update, several states have sued the President; the total count is now up to 24 states. The notorious Sheriff Joe Arpaio in Arizona has also requested a federal court to declare the President’s administrative relief programs unconstitutional and issue an order preventing the President from implementing it. The Department of Justice has asked the court to dismiss the Arpaio case. As we’ve said before, the President’s deferred action programs are firmly rooted in his prosecutorial discretion authority and many legal scholars believe the programs are constitutional. Nonetheless, we will be watching these cases closely and will keep you informed on developments.
Recent polls indicate that the majority of voters want Congress to act to fix our broken immigration system, rather than prevent President Obama’s executive action. Only time will tell whether Congress will listen. Unfortunately, statements by Congressional leaders indicate that Congress may move forward on a guestworker and enforcement-only strategy, doing nothing for the 11 million undocumented immigrants in the US. In the new Congress, Farmworker Justice will continue to advocate for immigration reform that treats farmworker communities and other undocumented immigrants humanely and in a way that comports with our values as a nation of immigrants. We will also be preparing to help implement DAPA in farmworker communities.