The Future of Our Immigration System: A Clintopia or a Trumpocalypse?
As we approach the end of Trump’s latest reality TV endeavor (running for President), we can only hope that this reality TV show comes to an end. While after the latest unveiling of Trump’s truly amoral and scary character, it appears that Hillary has the upper hand, this has not always been the case. Acclaimed liberals such as Michael Moore were sadly predicting a Trump win as recently as a month ago. While the clock ticks down, I still wake up fitfully in the middle of the night, fearing that the pendulum could swing back in Trump’s direction.
While a book could be written on the seismic impact the next leader of this country may have on this country and this planet, as an immigration attorney, I will try to stay in my lane, and focus the remainder of this blog on how either candidate may change our immigration system.
As a starting point, it is important to remember the distinction between our chief law enforcer (the President) and our law makers (the Senate and the House of Representatives). As the enforcer of our immigration laws, President Obama has revised our deportation priorities and granted some protection to one group of individuals, DACA recipients or “Dreamers”, while another program for the parents of residents and citizens has not taken effect due to a contentious lawsuit between the federal government and certain states (the DAPA program). Both of these programs derive solely from the President’s unilaterally power to enforce laws, or to grant prosecutorial discretion (i.e. selective enforcement of certain laws in order to promote justice and efficient resource allocation).
Because DACA and DAPA derive solely from Presidential power, their very existence may hinge on the outcome of the election. The DAPA program will certainly never be implemented if Trump wins. The future of the DACA program if Trump wins is harder to predict for a couple of reasons. First, even many Republicans support the DACA program, though Trump’s base certainly does not. The continuation of the DACA program, in the event of a Trump win, will hinge largely on whether Trump will swing his politics to the center, or whether he aligns his policies, as he has aligned his campaign, with the far right (an extremely frightening prospect). A second reason that I believe weighs in favor of the continuation of DACA, even in the event of a Trumpocalypse, is that historically it is much harder to take away benefits than to grant them. However, there is no precedent for Trump, so history may not be the best guide.
On the other hand, if Clinton wins, we can safely presume that DACA will continue and there will be a very good chance that the DAPA program will commence, though it still must overcome several obstacles. First, Hillary will have to appoint a 9th Supreme Court Justice that will agree with the constitutionality of the DAPA program, and second, the entire lawsuit will have to make its way back to the Supreme Court for a new decision.
Three other areas of immigration also may be greatly changed by this election: deportation priorities, border security and discretionary benefits policies. Trump has consistently (with often vitriolic and abhorrent language) campaigned for much higher deportations and “border security”. We can assume that many individuals who are not deportation priorities will become priorities if Trump wins. We also know that he believes border security is as simple as spending billions of dollars on a wall, despite the fact that many experts, including the former Secretary of the Department of Homeland Security, have stated that this is a horribly ineffective and unrealistic approach to border security. Perhaps the most frustrating part of Trump position is that unlawful border crossings have been down for many years, so this idea that border security is a bigger problem now is pure fear-mongering.
In contrast, if Hillary wins, we can safely assume that billions will not be wasted on a wall, and that deportations will not increase beyond Obama levels (which actually have been quite high).
Another broad area that stands to be effected by this election is the great number of discretionary benefits policies that USCIS and the president control. The best example of such a policy is the new I-601A stateside waiver process, a common sense process that allows foreign nationals to await the outcome of their waiver requests while in the U.S., whether than being separated from their families for years. This policy was created solely by DHS (which in turn reports to the President). While it would be unlikely that the 601A policy would be rolled back in the event of a Trump win, we can be sure that new common sense benefits policies will not be produced under a Trump administration.
In contrast to the policies above that are unilaterally controlled by DHS and the President, paths to permanent residency for certain groups like DACA and DAPA recipients are controlled by Congress as well as the President. New paths for permanent residency can only be created by new laws passed by Congress. The President also plays a substantial role in new laws since a Presidential veto means that 67% of both houses must vote in favor of a bill to become a new law, rather than only 51% with Presidential support. Therefore, predicting what new legislation we will see in the next four years is a function of both houses of Congress, which are currently Republican controlled. Whether the Republicans hold on to this control is increasingly in doubt as Republicans who have boarded the Trump ship are now looking for life boats that may have already departed.
In contrast, if Hillary wins, and Democrats take back at least the Senate, there is a much greater chance that we may finally see some common sense, fair, humane and much needed immigration reform.