The least productive Congress in modern history will leave Washington this week for the holidays. After running the clock out on this Congress without action on immigration reform, Republicans have been predictably furious at President Obama for taking action to mitigate the hardships caused by their lack of action.
Hearings on Executive Action
The House has already held hearings on executive action. The first was conducted by the House Homeland Security Committee on December 2 and titled, “Open Borders: The Impact of Presidential Amnesty on Border Security.” The Committee called in DHS Secretary Jeh Johnson for that hearing. The House Judiciary Committee also held a hearing on December 2 titled, “President Obama’s Executive Overreach on Immigration.”
Legislation to Block Executive Action Passes the House
On December 4, the House debated and passed H.R. 5759, “Preventing Executive Overreach on Immigration Act of 2014,” sponsored by Rep. Ted Yolo of Florida, which would prohibit the executive branch exempting or deferring from removal categories of undocumented immigrants. The bill passed on a party-line vote of 219 to 197.
The administration has issued a veto threat for the Yolo bill, which in any event was not taken up by the Senate. Republicans are vowing to take more votes early in the next Congress.
Cutting Agency Funding
One strategy Republicans have considered is to cut off funding for USCIS, the agency that will carry out the executive action, in order to prevent the immigration relief from being carried out. USCIS, however, is fee-funded. Money collected along with immigration applications is used to fund the agency. In fact, during the last government shutdown in 2013, the agency was able to continue operating because it is not dependent on year-to-year appropriations from Congress (with the exception of the office that runs E-Verify, which is dependent on appropriations).
The immigration hard-liners in the Republican caucus pushed for a provision in the Fiscal Year 2015 spending bill that would prohibit spending to carry out the executive action on immigration. However, Republican leaders did not want a government shutdown over the issue and on December 11, the House passed a bill to fund all agencies of the government through the remainder of the Fiscal Year (September 30, 2015) except the Department of Homeland Security, which was funded only through February. The Senate followed on December 13. Republicans will try to use appropriations for DHS to thwart the president next year, but in the process they might set the stage for a partial government shutdown early next year.
Legal Challenges
Republican opponents of the president’s action claim that the president does not have the legal authority to do what he did. As DHS Secretary Jeh Johnson noted in a House hearing mentioned above, however, “We spent a lot of time with lawyers.” Prior to the announcement, legal experts on immigration law sent a letter to the president outlining the scope of executive branch authority to protect individuals or groups from deportation. The Justice Department’s Office of Legal Counsel issued a lengthy opinion on the president’s discretionary authority. Four former General Counsels of the Immigration and Naturalization Service, or Chief Counsels of U.S. Citizenship and Immigration Services also issued a letter weighing in on the legality of the president’s actions.
Nevertheless, on December 3, Texas Attorney General Greg Abbott filed a lawsuit against the executive action, claiming the president’s “unilateral suspension of the Nation’s immigration laws is unlawful.” Texas was joined by 16 other GOP-controlled states—Alabama, Georgia, Idaho, Indiana, Kansas, Louisiana, Montana, Nebraska, South Carolina, South Dakota, Utah, West Virginia, and Wisconsin—as well as the governors of Idaho, Maine, Mississippi, and North Carolina. Experts believe the states’ claims are weak, especially given the use by previous administrations of executive action to protect groups from deportation. However, the plaintiffs were able to file the suit with a District Court Judge that has been hostile to the Obama Administration.
Never one to miss a headline, Arizona Sheriff Joe Arpaio has also filed suit against the president, claiming the president’s actions are unconstitutional.
The Ted and Michele Show
On the extreme end of the spectrum, Rep. Michele Bachman (R-Minn.) went on Fox News and urged viewers to come to Washington on December 3 for a “high noon” rally against “amnesty”. Sen. Ted Cruz (R-Tex.) was also there to rally the troops. As the time of the event approached, however, it was obvious that turnout would be (to be polite) thin. The “rally” was downgraded to a press conference, attended by about 40 people.
Acting to Keep the System Broken
After a year and a half of stalling, Republicans have lunched into a fury of activity on immigration. Unfortunately, prospects for reforming the broken immigration system seem no less remote, as all of their energy has, so far, been spent on trying to make sure that the system stays broken.
During debate on H.R. 5759 on the House Floor, Rep. Bob Goodlatte (R-Va.), who currently chairs the House Judiciary Committee and who will continue in that role in the 114th Congress, responded to criticism that House Republicans have thus far failed to act on immigration reform,
“…it is not true that the House of Representatives has not acted to fix our broken immigration system. First of all, last summer, we passed two bills, one from the Appropriations Committee and one under the jurisdiction of the Judiciary Committee, that did just that, that provided resources to secure our borders … and [to] make sure that the DACA program that the President implemented earlier was frozen and could not proceed further.”
That statement just made the Congressman look silly. For one, passing appropriations bills are the minimum that Congress must accomplish to avoid a government shutdown (and they were more than two months late in getting even that much accomplished.) The vote on the DACA bill was purely symbolic. It had no chance of becoming law. Putting it in context, though, serving in the least productive Congress in modern history, Mr. Goodlatte counts a symbolic vote as an accomplishment.
If Goodlatte thinks that stopping the DACA program, which has helped hundreds of thousands of young people in this country, is immigration reform, then prospects for real immigration reform in the next Congress are not good.
Broad Support for the Policy if not the Process
Public Support
A CNN poll released a few days after the president’s announcement on November 26 showed that there is broad public support for the policies announced by the president, if not for his method. In the CNN poll (of 1,045 U.S. adults), respondents were asked whether they thought Obama’s plan went far enough–to allow some immigrants who are in the U.S. illegally to stay and work if they have U.S. citizens children. Only 26 percent said it went too far. Half of respondents said the plan was “about right,” while 22 percent thought the president didn’t go far enough. By contrast, when asked whether they favor the use of executive orders to implement these policies, a majority—56 percent—said they opposed, while 41 percent were in favor.
When asked how Republicans should respond, three-quarters of those surveyed (76%) said they should spend more time passing an immigration reform bill (verses 21 percent who said they should focus on overturning Obama’s policies).
Despite the public’s distaste for the president’s methods, the announcement of executive action on immigration has boosted public support for Obama’s handling of illegal immigration, which jumped 10 percent after the executive action announcement. (Among young people his approval rating on this issue jumped 13 percent, and among minorities, 15 percent.)
Similar results were obtained in a survey released on December 4 by the Public Religion Research Institute, which found that allowing undocumented immigrants with U.S. citizen children to stay in the U.S. is supported by nearly three-quarters (72%) of U.S. adults. On the other hand, just half (50%) of respondents to the survey said Obama should have taken executive action, while 45% said he should not have done so.
The Pew Research Center and USA Today released a poll on December 11 with similar results—70% of respondents said there should be a way for undocumented immigrants to stay legally if they meet certain conditions, while only 46% of respondents approved of President Obama’s executive action.
Latino Support
Latinos, as might be expected, overwhelmingly support the president’s actions. In a poll conducted by Latino Decisions between November 20 and 22 of Latino registered voters, 89% of respondents said they supported President Obama’s executive actions, with 68% strongly supporting the president. Eighty percent say they oppose potential efforts by Republicans to block the president’s executive actions. Already, according to the poll, Latinos blame Republicans for lack of progress on immigration reform by a margin of 64 to 24 percent (with 12 percent not having an opinion). Similarly, Gallup’s weekly tracking of approval of the president shows a spike in the president’s approval ratings among Latinos after the executive action announcement. In the Pew Research Center Poll mentioned above, Latino approval of the President’s handling of immigration has jumped 24 points since November of 2013.
As so many commentators have already noted, Republicans need to increase their share of the Latino vote, otherwise the path to the White House becomes increasingly difficult. By all appearances, there will be a major focus by Republican leaders at the start of the new Congress next year on trying to thwart Obama’s efforts to help Americans without papers, setting up a dynamic early in the next election cycle where the perception will be that Democrats are trying to help Latino communities while Republicans–trying to satisfy the 21% of the public that wants Republicans to focus on returning Obama’s policies–want to hurt them.
Support of Cities
There is another aspect of this debate that doesn’t get much play because it is not so much a part of the political winners/losers narrative the press loves. While immigrants are spreading out across the country more than they had in the past, only 10 metro areas in the U.S. account for more than half of the immigrant population. These cities–New York, Los Angeles, Miami, Chicago, Houston, San Francisco, Washington, Dallas, Riverside, and Boston—are welcoming to immigrants. There are other large cities not in the top 10 that also have large immigrant populations and that also are welcoming of immigrants. These cities will welcome the president’s actions as taking a step toward the positive federal policies they have advocated for years.
Indeed, the National League of Cities (NLC) released a statement at its annual meeting on November 20 that said in part,
“For years NLC has called for federal action to fix the nation’s broken immigration system. After interminable delays stretching over two administrations, we applaud the president taking action to address the problem.”
On December 3, the mayors of 25 cities—including New York, Los Angeles, Houston, and Philadelphia—launched a coalition, Cities United for Immigration Action. The group has formed specifically to help implement the new programs announced by the president. A statement released by the group said in part,
“The president’s action on immigration will strengthen our cities. It will keep families together, grow our economies and foster additional community trust in law enforcement”
On December 8, mayors in the coalition (which as of this writing includes 35 cities, including Chicago to round out the five largest U.S. cities) met in New York to plot strategy for assisting each other as the president’s executive order is implemented next year.
Mayors of other of America’s largest cities have also weighed in, applauding the president’s action.
Should Republicans down the road succeed in reversing the protections being granted by the Obama administration, it is hard to see how they are going to get much cooperation from leaders in the cities where most immigrants live.
If Legislators Don’t Legislate
From appearances, House Republicans in the weeks ahead will use the president’s action as yet another excuse to avoid actually doing the work necessary to fix the immigration system. It will only be the latest in a series of excuses Republicans have used over the past months and years for not tackling immigration reform.
Since they took control of the House in 2010, as Thomas Mann of the Brookings Institution noted in a commentary about the president’s executive action, Republicans have shown little interest in legislating. Instead, they have used their majority in the House “to guarantee that Congress would be the graveyard of serious policymaking.” As a result, the “policymaking initiative and power inevitably will flow elsewhere—to the executive and the courts.” This realignment of power is the cost of a dysfunctional Congress.
A version of this post was written for the National Immigration Forum’s Policy update.
Maurice Belanger Consulting 