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Greg Siskind on Immigration Law and Policy

PLAN B - THE EXECUTIVE OPTION

Rating: 2 votes, 5.00 average.

Over the last 24 hours, Senator Harry Reid and Senator Charles Schumer have both issued statements indicating that they intend to pursue comprehensive immigration reform in the 112th Congress. Do me a favor Senators. Let's not make this THE strategy for fixing the immigration system as we have since 2004. Unless you reform the filibuster rules and can then produce the names of enough Senators who can pass an immigration reform bill, you will be setting back any real effort to fix the immigration system.

When President Obama and the Democrats took control of Washington in January 2009, they embarked on a carrot and stick immigration strategy. The President would pursue a get tough immigration policy and show that we can really get control of the border. Congress would later work toward passing an immigration reform plan and hopefully pick up Republican supporters who were genuine when they indicated during prior reform efforts that they supported a legalization program AFTER we got a handle on immigration enforcement. Well, we got the stick. The Obama Administration has deported a record number of immigrants, the overall illegally present immigrant population in the US has dropped by more than a million and Congress passed a massive funding bill to ramp up border enforcement. But at the end of this Congress, there are even fewer immigration reform supporters than at the outset. The DREAM Act, supposedly the easiest piece of the immigration reform plan, can't even garner enough votes to pass. This should signal that Republicans have no plans to compromise on immigration no matter how many enforcement bills are passed and how much the President ramps up deportation efforts. Secretary Napolitano was right when she said earlier this year that the Republicans will just keep "moving the goalposts" and will never be satisfied with immigration enforcement efforts.

And that's because the real goal for most in the GOP is not to have an orderly, enforced immigration system, but, rather, to play to an anti-immigrant base of supporters in so-called Red States. For every Richard Lugar out there, there are many more "closet" pro-immigration officeholders in the GOP. I've visited with many who will candidly tell you that they agree with DREAM, AgJobs and broader immigration reform. But they will also tell you that they simply will not risk voting for those bills. They do not need to be convinced of the merits of the pro-immigration case - they're already believers. But they're in survival mode and panicked by the prospects of facing a Tea Party primary opponent. If they were serious about wanting to eventually deal with the illegally present population, they would have defined what it actually means to get control of the border.

It's now time to move on to Plan B.

Several months ago, I published a leaked memorandum outlining a range of options the President has available to deal with immigration matters if Congress failed to do its job and address needed immigration reforms. Additional options have been outlined by my friends Cyrus Mehta and Gary Endelman.

Now is the time, Mr. President, to wipe the dust off that memo an also look for additional input on your executive options and do what needs to be done. It is time to use this authority to implement legalization strategies for the most worthy illegally present immigrants, reform a legal immigration system run by a USCIS that has been taken over by protectionists with little interest in following the Administrative Procedures Act or administering the laws as they were drafted by Congress, and, yes, enforce immigration law in a consistent way that prioritizes the worst actors but doesn't ignore the constitutional values that define our country.

Strictly from a political point of view, the President's best move is to no longer depend on Congress. The narrative is straightforward - Congress has been unable move even the smallest immigration measures for the last several years and our national secuirty depends on bringing some order to the system.

The polls show Americans are far more pragmatic on immigration issues than the hardcore right wingers who have handcuffed the GOP. But more importantly, the President has to look at the electoral math and realize that just a few points shift in a couple of states with large Latino populations will end his chances in 2012. Those voters are not in the pocket of the Democrats and immigration is and will remain one of the top issues for this key constituency. Republicans in denial try to pretend that Latinos don't care all that much about immigration.The smart members of the GOP know that they've got a major problem unless the Democrats some how blow it with Latino voters.

How could President Obama lose these voters? Democratic Senators and Representatives can go to their voters and point to their vote on the DREAM Act to at least present as evidence of having tried. But President Obama's one accomplishment on immigration is having ramped up deportations to record levels. Merely having made encouraging statements about immigration reform is going to ring pretty hollow after four years of waiting. Latinos don't need to vote for the Republican candidate in 2012. They just need to stay home to ruin the President's reelection chances.

The President needs to deliver something on immigration for Latinos and it is not going to come in the form of a pro-immigration bill passed by Congress. It will need to come in one of three forms.

First, the President could hope that the anti-immigrants in Congress succeed in passing the anti-immigration bills they're promoting (repealing birthright citizenship, for example). He would then get to make a highly publicized veto. But it's pretty unlikely a bill of this sort would pass in the Democrat-controlled Senate.

Second, the President could ease up on immigration enforcement. But doing so will be tough given all of the political investment that has gone in to such policies over the last decade and would make the President look insincere when he committed to getting control of illegal immigraiton.

And third, the President could move on immigration reform through executive decisions, as I've noted above. And, really, this is the only viable option he can consider.

Republicans will scream bloody murder when the President moves in this direction and there is no doubt that the anti-immigration shouting machine will go to town. But Republicans would also be foolish to think that the public will punish the President if he moves forward on immigration without Congress. Most Americans are disgusted with Congress' inability to solve problems so they are likely to give the President points for trying to deal with this problem on his own. But even if they were are thrilled with the President acting on his own, most voters put immigration far down the list of issues they consider most important. The only two groups that place immigration at the top are Tea Party activists and Latino voters. And the President's has a zero percentage chance of winning many Tea Party votes. 

And so back to Senators Schumer and Reid. Thank you for doing your best to move immigration reform. But it's time to admit that relying on Congress to fix the immigration system has failed and its prospects in the 112th Congress are dismal. Do your best to pass immigration reform, but make it clear that smaller pro-immigration bills can now move. And give the President political cover to pursue an executive authority approach by publicly supporting him in such efforts.

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Comments

  1. Another Voice's Avatar
    I think many people agree with this assessment, the only thing would be the risk reward benefit that the WH would place in this strategy. I agree with you their choices are limited and this would ensure the Latino vote in 2012. Not sure if Latino voters can be asked to trust a politician to act on Immigration.... they need at least a bone in order to believe again. Otherwise as you pointed out they may stay home to their own detriment, which means that the status quo would prevail and they are used to that as the norm. I think it would be brilliant to use the deep dissatisfaction with Congress to resolve problems against them...
  2. George Chell's Avatar
    I dont think it is going to happen, reform or executive order, the latter at least until 2013 and if Obama is re-elected. However, if the SCOTUS does rule in favor of Arizona, it will allow states to make all kinds of immigration law and look for Brown and the CA legislature to pass the DREAM ACT which will result in a stampede of eligible students to move into California. I think it is already happening.
  3. Michael's Avatar
    Note the article says that "Gibbs said it is unlikely that the administration will take executive action on immigration laws, saying any change has to go through Congress."

    There will be no executive action to benefit all the undocumented aliens. The number of people is too high for this to work. It is possible to lobby for a targeted executive order granting employment authorization and deferred action status to say, all the Dream Act beneficiaries. The political cost for this is relatively modest and I believe the President has ample constitutional power to do this.
  4. Jim's Avatar
    Good thing it came directly from Greg regarding the fallacy of re-introducing CIR. CIR is not going to happen!! DREAM is dead for at least the next 2 years or so.

    Other options are now needed and ASAP!!

    I hope I don't hear anymore BS saying that other options has absolutely no chance w/o CIR. Is it going to be hard? Sure!! But saying that the other options and smaller bills has no chance at all w/o CIR is just BS.

    It's time to try the other options and for smaller immigration bills.
  5. George Chell's Avatar
    Too bad, the guy who is in favor of immigration is a loose cannon at best or has some competency problems at worst...

    http://news.yahoo.com/s/yblog_theticket/20101221/pl_yblog_theticket/will-barbours-comments-on-race-derail-his-2012-bid

    Sad!
  6. Another Voice's Avatar
    maybe it's his Makakah moment!!!
  7. Ben Steltzer's Avatar
    Send this to the President:

    Dear President Obama,
    Many presidents have been faced with great challenges throughout American history. Some have been at the forefront of courageous decisions that defined them as a great president.
    Since George Washington presidents have used Executive Orders to correct an injustice
    In 1862 President Lincoln by Executive Order suspended the writ of habeas corpus and issued the Emancipation Proclamation .
    President Truman by Executive Order integrated the armed forces of the United States.
    President Eisenhower by Executive Order desegregated schools.
    President Kennedy and President Johnson by Executive Order barred racial discrimination in federal housing, hiring and contracting.
    Mr. President you have the will of the House of Representatives and the majority vote in the United States Senate to correct an injustice to children who were brought to the United States without their consent and were raised here as loyal patriotic Americans. In a sense they are American refugees.
    These great Presidents could no longer stand on the side lines and tolerate the injustices and suffering of so many people.
    Mr. President find it in your heart and ask God for the wisdom and justice that you may have the courage by Executive Order to implement the will of the United States House of Representatives and the Senate of the United States. Grant a temporary status for children with college degrees or willing to serve in the United States military.
    Sincerely,
    Children who grew up loving the United States of America




  8. Sempe's Avatar
    Here's one Mehta and Endelman missed: Defense Secretary Gates could allow DREAM-Act-eligible aliens to enlist in the military. He could do this using the authority he has under 10 U.S.C. 504(b)(2) to enlist any person, including an illegal alien, if it is found to be "vital to the national interest". This is the same authority that is used to enlist nonimmigrants under the MAVNI program. DOD could have at any time enlisted Cesar Vargas and all the other DREAM-Act-eligible aliens who want to serve, without any need for the DREAM Act or any Congressional action at all, yet for some reason Vargas and the others have been put through the ringer of DREAM Act ups and downs for years without Sen. Durbin or anyone else putting any pressure on DOD to use the authority it already has to address a big part of the problem.
  9. Myrna's Avatar
    Please google about the Mariel Boat lift executive order allowing Cuba to dump it's poor and empty it's jails to the U.S. Check out what that did to President Jimmy Carter's re-election before suggesting such a similar stupid thing to Barack Obama.

    Such an executive order will not benefit a single U.S. voter. Not one.

    Arrogant citizens of other countries have some nerve coming to the U.S. and demanding the same rights as citizens.
  10. Legal and no longer waiting's Avatar
    "Arrogant citizens of other countries have some nerve coming to the U.S. and demanding the same rights as citizens."

    Right. And the Founding Fathers had some nerve extenidng unalianable rights to all persons regardless of their citizenship.
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