Immigration, Legislation, and the Tension Between the Two

By: Edith Hinson

Since the beginning of November, when it was confirmed that President Obama 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; and yet the need for that legislation was ever-increasing, as more and more migrant children were crossing into the U.S. on their own. The call for immigration reform was roaring, but the legislators were giving it a deaf ear. 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.


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“Our immigration system is broken…” [1]

The President chose these words as his opening remarks, and the truth of the statement is blatantly obvious. No matter which side of the issue you fall on, the fact that the current set of laws are being neither followed by the people nor enforced by the agencies demonstrates that the current system is not effective. Whether it is because the people breaking the rules are not being punished or because the conditions of the immigrants’ home countries are getting so volatile, 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.]”

Immigration reform was a key objective of Obama’s platform for election. Pursuant to his promise to make it a priority, he advocated for the DREAM Act [2], which would have granted a pathway to citizenship for certain young immigrants who are seeking education and self-improvement. After intense debate in the Senate, members of both parties came up with a draft they could all live with. Once the Senate passed it, they sent it over to the House of Representatives. Key leaders in the House have since stalled the bill, refusing to allow it to go to a vote. The President, facing intense opposition from the GOP-held House of Representatives, chose to take immediate action in an attempt to alleviate growing tensions across the board.

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 stopped bickering with each other.

Under Article II, Section I, of the United States Constitution, the President is not able to write laws per the executive order clause. Rather, he or she has the authority to review the framework of the current laws and announce to lower enforcement personnel how the law should be applied. Think about the states where marijuana has been legalized. The federal government could identify the purveyors and users of the illegal drug and arrest them, but they have made the executive decision that it is not currently a priority to do so. They would rather target big-time traffickers of heavy narcotics than non-violent marijuana smokers. This is simply an example of members of the executive branch exercising their constitutional right to enforce the laws within their own discretion. [3] Just like it’s not realistic to indict every pot-smoker, the President’s executive order on immigration recognizes it is similarly unrealistic to deport every immigrant. 

The Reason We Allow for Discretion

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

The President summed this up very succinctly in his speech on Nov. 20 when he said, “Let’s be honest—tracking down, rounding up, and deporting millions of people isn’t realistic.” We just simply don’t have the resources and personnel to do such a thing. But when our laws require something that we are literally not able to do, shouldn’t we amend them? This seems to be a logical answer, but that’s not always the case. Sometimes laws are so archaic, it is obvious that they shouldn’t be enforced; and when everyone agrees to not enforce them, it doesn’t necessarily make sense to spend time and money amending them. Additionally, sometimes the timeline of the legislative process is not keeping pace with the escalating need. The latter situation is what’s true here. Therefore, the President had to do something to give consistent direction to the enforcers of our laws on how to best do their jobs.

 The Plan

 The President laid out a clear plan to reform immigration by:

  • 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 to the U.S. 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.

What does this plan really mean? President Obama explained: “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.” 

The Impact

What then is the message? To law enforcement personnel within the country, the message lets them know that they can spend their time and energy locating criminals and removing them from the country. This message also lets the border enforcement know that they are 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. 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 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. Without identifying the problems, we are unable to draft a workable solution. Therefore, once the President’s enforcement priorities are put into practice and we are able to measure the positive and negative changes that transpire, we will be able to take a more educated and progressive step on immigration. Absent action by Congress, 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.

[1] The full-text speech is available at

[2] DREAM is an acronym for “Development, Relief and Education for Alien Minors.”

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

One Response to Immigration, Legislation, and the Tension Between the Two

  1. EquityVeritas says:

    However, granting work permits is not within the realm of “prosecutorial discretion” but is rather an act which violates current law in creating a new law – which is beyond the legal and constitutional authority of the executive branch.

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