Policy Update: 2014 Ends with DC Divided Over Executive Action

Director of Policy and Advocacy

December 22, 2014

Elections Give Republicans Control of Senate and House

Republican victories in November’s midterm election produced a Congress that will be more conservative than the 113th Congress, which has distinguished itself as being the least productive Congress in modern history and has deeply disappointed immigration advocates by failing to enact immigration reform legislation. More than by those who went to the polls, the election was decided by those who did not vote. Voter turnout nationally was 36.3%—the lowest since 1942.

Segments of the population that tend to be supportive of immigration reform, as measured by public opinion polls, were underrepresented even in the smaller midterm electorate. For example, Latinos were 8% of voters, but 22% of non-voters. Younger people (age 18-34), who also favor a more welcoming approach to immigrants, made up 17% of voters and 47% of non-voters. Asian Americans were 3% of voters about the same percentage as in 2012, according to exit polls.

In the end, the new Congress will be composed of members less inclined to make significant fixes to our immigration laws than the current Congress.

Republicans Will Lead Senate Immigration Committees

With the takeover of the Senate by the GOP, Senate Committees will be passed to Republican leadership. The Judiciary Committee, which has jurisdiction over immigration policy and which is now led by Sen. Patrick Leahy (D-VT), will be led by Sen. Charles Grassley (D-IA), an opponent of the bipartisan immigration reform bill that passed the Senate in 2013. Sen. John Cornyn(R-TX), who also voted against the 2013 Senate bill, will lead the Immigration Subcommittee.

On the Senate Homeland Security and Governmental Affairs Committee, the senior Republican member, Sen. Tom Coburn (R-OK), is retiring. Sen. Ron Johnson (R-WI) has been named the new Chair.

On the House side, the Judiciary Committee will continue to be led by Rep. Bob Goodlatte (R-VA). Rep. Goodlatte has been a vocal critic of the Obama Administration’s recent executive actions on immigration. The Immigration Subcommittee will continue to be led by Rep. Trey Gowdy (R-SC), and the Vice Chair will be Rep. Raul Labrador (R-ID), replacing Rep. Ted Poe (R-TX). The House Homeland Security Committee will continue to be led by Rep. Michael McCaul (R-TX).

Next year, we can expect a focus on overturning the president’s executive action on immigration, as well as enforcement-first immigration legislation that will be less controversial to conservative members.

Sen. Mitch McConnell (R-KY), who will be Majority Leader next year, talked about “busting up” the Senate’s immigration bill, and passing pieces starting with border security, H-1B and H-2A temporary worker expansion, and mandatory employment verification. Rep. Goodlatte has stated that he wants to address immigration reform by moving bills that passed in his committee last Congress. Rep. Labrador, who worked with a bipartisan group of House members on comprehensive immigration reform in 2013 before becoming a critic of ongoing reform efforts, also supports a step-by-step approach that will prioritize border security, enforcement of existing immigration laws, and modernizing guest worker programs. Rep. McCaul is beginning to work on legislation focusing on border security that will be “tougher” than his previous bill, H.R. 1417. Sen. Ron Johnson has also announced his intention to work on a border security bill.

Republicans in Congress Seek to Override Executive Action

President Obama’s executive action on immigration, which was detailed in our November policy update, came on November 20 after the 113th Congress failed to take action on immigration reform, specifically House Republican leadership who declined to hold votes on immigration reform legislation.

In response, President Obama’s announcement received fierce condemnation from Republicans, who asserted that it was unlawful and illegitimate. Republicans, including some who supported the Senate immigration bill, have opposed executive action, have introduced legislation to override and undermine it and are aggressively challenging it in many forums.

Hearings on Executive Action

The House has already held hearings on executive action. The first, titled “Open Borders: The Impact of Presidential Amnesty on Border Security,” was conducted by the House Homeland Security Committee on December 2 and featured testimony from DHS Secretary Jeh Johnson. The House Judiciary Committee also held a hearing on December 2 titled, “President Obama’s Executive Overreach on Immigration,” which focused on the legal authority of the president to take executive action and featured testimony from legal experts and advocates.

Legislation to Block Executive Action Passes the House

On December 4, the House debated and passed H.R. 5759, the “Preventing Executive Overreach on Immigration Act of 2014,” sponsored by Rep. Ted Yoho (R-FL), which would prohibit the executive branch from exempting or deferring from removal the undocumented immigrants who could benefit from executive action. The bill passed on a largely party-line vote of 219 to 197. The administration issued a veto threat for H.R. 5759, which in any event was not taken up by the Senate. Republicans are vowing to take more votes early in the next Congress, but have faced criticism in some quarters for voting on H.R. 5759 while failing to permit votes on substantive immigration reform bills.

Cutting Agency Funding

One strategy Republicans have considered is to cut off funding for U.S. Citizenship and Immigration Services (USCIS), the agency that will process and approve applications for deferred actions under 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 conference pushed for a provision in the fiscal year 2015 spending bill that would prohibit spending to carry out the executive action on immigration. Because Republican leaders did not want a government shutdown over the issue, this effort failed. On December 11, the House passed a bill to fund all agencies of the government through the remainder of the fiscal year (ending September 30, 2015) except the Department of Homeland Security (DHS), which was funded only through February 27. On December 13, the Senate passed the House’s funding bill, avoiding a government shutdown. The Senate vote followed a delay brought about by Sen. Ted Cruz (R-TX) and Sen. Mike Lee (R-UT), who sought a vote on the president’s immigration actions. After cloture was reached, Sen. Cruz obtained a vote on a constitutional point of order that would have deemed the entire DHS section of the spending bill unconstitutional. The point of order failed overwhelmingly, 22-74, with 20 Republicans joining every Democrat to defeat it.

Congress will need to revisit DHS appropriations in February 2015, and Republicans have made clear that they intend to use appropriations for that agency to thwart the president. In the process, they might set the stage for a partial government shutdown that would affect the subdivisions of DHS that are not fee-funded early next year.

Legal Challenges

Republican opponents of the president’s action claim that the president acted contrary to his legal authority. As DHS Secretary Jeh Johnson noted in the House hearing mentioned above, the administration carefully crafted the executive action package to be legally compliant: “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 weighed in on the legality of the president’s actions, issuing a letter “wholeheartedly” agreeing that the president’s actions were legal.

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 24 other states —Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, West Virginia, and Wisconsin. 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’s immigration policies.

Separately, Maricopa County (AZ) Sheriff Joe Arpaio has also filed suit against the president, claiming the president’s actions are unconstitutional.

In an unusual opinion on December 16, a federal court in Pennsylvania opined that the president’s executive action was unconstitutional, but declined to enjoin the program. The opinion was unexpected because the issue was not raised by any party in the proceeding and was not argued or briefed prior to the decision and faced criticism from legal scholars and analysts from across the political spectrum.

Meanwhile, a federal court allowed a lawsuit (filed well before the announcement of executive action) brought by the union Washington Alliance of Technology Workers and IT workers to proceed after it found that they have standing to bring the suit. The case challenges the expansion in 2008 of a student visa work program, known as Optional Practical Training (OPT). The workers allege that DHS was not justified in expanding OPT for STEM workers to 17 months because it did not have evidence to support the requirement that there was a “critical shortage” of STEM workers.

…But There is Broad Support for the Policy (if Not the Process)

Public Support

A CNN poll released on November 26, a few days after the president’s announcement, showed that there is broad public support for the policies announced by the president, but concern about the process. 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 children who are U.S. citizens or legal residents. 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 were opposed, while 41 percent were in favor.

When asked how Republicans should respond, three-quarters of those surveyed (76 percent) said that congressional Republicans should spend more time passing an immigration reform bill (versus 21 percent who said they should focus on overturning Obama’s policies).

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 percent) of U.S. adults. On the other hand, just half (50 percent) of respondents to the survey said Obama should have taken executive action, while 45 percent said he should not have done so.

The Pew Research Center and USA Today released a poll on December 11 with similar results — 70 percent of respondents said there should be a way for undocumented immigrants to stay legally if they meet certain conditions, while only 46 percent of respondents approved of President Obama acting via executive action.

Latino Support

Latinos overwhelmingly support the president’s actions on immigration. In a poll of Latino registered voters conducted by Latino Decisions between November 20 and 22, 89 percent of respondents said they supported President Obama’s executive actions, with 68 percent strongly supporting the president. Eighty percent say they oppose potential efforts by Republicans to block the president’s executive actions, including 60 percent of Latino Republicans. Similarly, recent polls by Gallup and Wall Street Journal/NBC News/Telemundo show a significant spike in the president’s approval rating among Latinos after the executive action announcement. The Pew Research Center poll mentioned above shows Latino approval of the President’s handling of immigration having jumped 24 percentage points since November of 2013.

As the Republican National Committee and many commentators noted after the 2012 election, Republicans need to increase their share of the Latino vote in order to win the White House in 2016 and beyond. Yet, all indications are that one of the first orders of business for the new Republican-led Congress will be thwarting President Obama on immigration.

For Republicans, this risks a dangerous dynamic early in 2016 election cycle. If Republicans fail to offer constructive immigration reform legislation, and instead focus on deporting DREAMers and parents, the perception will be that Republicans are trying to break up immigrant and mixed-status families. If Republicans focus on appealing to the 21% of the public that wants Republicans to focus on overturning Obama, while Democrats are seen as working to improve the lives immigrants, it will be exceedingly difficult for a Republican presidential nominee to make inroads to immigrant voters.

Support of Cities

While immigrants are increasingly spreading out across the country, moving into new communities that previously have not had significant immigrant populations, 10 metro areas still account for the majority of the immigrant population. These cities – New York, Los Angeles, Miami, Chicago, Houston, San Francisco, Washington, Dallas, Riverside (California), and Boston, have made special efforts to be welcoming to immigrants. Joined by other cities with smaller, but fast-growing immigrant populations, these cities have been advocating for immigration reform and calling for federal policies aiding immigrants for some time. Not surprisingly, many cities have welcomed the positive impact of the president’s action on their immigrant residents.

Indeed, the National League of Cities (NLC) released a statement at its annual meeting on November 20 praising the president’s executive action, stating, 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 (CUIA). The group has formed specifically to help implement the new programs announced by the president and to continue to press for Congress to pass legislation to address immigration reform. A statement released by the group said that executive action “will strengthen our cities. . . . will keep families together, grow our economies and foster additional community trust in law enforcement.”

As of this writing, 35 cities have joined CUIA, including – after Chicago joined the coalition – the five largest U.S. cities. On December 8, mayors in CUIA met in New York to share best practices and develop implementation strategies for executive action, including ways to leverage non-profits and advocacy groups for crucial outreach work with immigrant residents of their cities.

The relationship between Republican elected officials and these city leaders will certainly face future strain should Republicans eventually succeed in reversing the president’s executive action program. This will further complicate Republican efforts to improve their standing among electorally crucial immigrant communities.

Federal Agency Developments

Sarah Saldaña Confirmed as ICE Director

In September, President Obama nominated Sarah Saldaña to be Assistant Secretary of Homeland Security for Immigration and Customs Enforcement (ICE). ICE has been without a permanent leader since the end of July 2013, when John Morton left the agency.

Saldaña, a well-respected U.S. Attorney for the Northern District of Texas, was approved unanimously by the Senate Committee on Homeland Security and Governmental Affairs in November. On December 3, her nomination cleared the Senate Judiciary Committee in a narrow 10 – 8 vote. In the interim, Saldaña had lost the support of Senate Republicans after she declined to disavow President Obama’s executive action on immigration. Nevertheless, on December 16, the Senate confirmed Saldaña largely along party lines. (The Forum’s statement on Ms. Saldaña’s confirmation can be read here.) With Saldaña in place, the Department of Homeland Security has all of its key leadership positions filled for the first time in years.

DHS Opens Family Detention Facility in Dilley, TX

On December 14, DHS Secretary Jeh Johnson opened a massive family detention center in Dilley, TX. It is located about 70 miles southwest of San Antonio and will eventually hold about to 2,400 detainees.

While Johnson touted the facility as critical in discouraging future inflows of undocumented immigrants to the United States, advocates continue to be outraged by the increase in family detention, highlighting the exorbitant moral and fiscal costs of detaining mothers and children. (The National Immigration Forum issued a statement about the opening of the facility at Dilley here.)

The opening of the facility was met with a nationwide class action lawsuit filed by the American Civil Liberties Union on December 16. The lawsuit challenged Obama Administration policies that provide for the detention of asylum seekers, including women and children held in family detention.

U Visa Cap Reached Already

On December 11, USCIS announced that it already has approved the maximum 10,000 U visa petitions for fiscal year (FY) 2015, making it the sixth straight fiscal year the maximum has been reached. U visas are available for victims of crime who suffer physical or mental abuse and cooperate with law enforcement or government officials to investigate and prosecute those crimes – often domestic violence, human trafficking, sexual assault, or other similar offenses. USCIS will continue to review pending U petitions for eligibility and place qualifying applicants on a waiting list. USCIS will resume issuing U visas on Oct. 1, 2015, the beginning of FY 2016. Petitioners and qualifying family members on the waiting list must continue to meet eligibility requirements at the time that the U visa is issued. In FY 2014, the U visa maximum was also reached in December 2013. According to USCIS, over 45,000 U visa applications were pending with the agency at the end of FY 2014.

States Continue to Welcome Immigrants

Arizona DREAMers to Receive Driver’s Licenses

In a 6-3 ruling on December 17, the U.S. Supreme Court paved the way for Arizona DACA recipients to receive driver’s licenses. After the Obama administration rolled out DACA in June 2012, Gov. Jan Brewer (R-AZ) issued an executive order directing state agencies to deny public benefits, including driver’s licenses, to the young people receiving deferred action under DACA. In July, the U.S. Court of Appeals for the Ninth Circuit blocked the Arizona policy, holding that it violated equal protection principles and finding that there was “no legitimate state interest” justifying it. Gov. Brewer had sought a stay of the Ninth Circuit decision, but the Supreme Court denied her request.

On December 18, a federal judge ordered Arizona to start issuing driver’s licenses to all recipients of deferred action, effective Monday, December 22. Following the ruling, Nebraska is the only remaining state denying driver’s licenses to DACA recipients.

More Cities Promote Naturalization

On December 15, eleven additional cities joined Cities for Citizenship (C4C), a national initiative aimed at helping eligible U.S. permanent residents immigrants become citizens by expanding naturalization programs and taking other steps to reduce barriers to naturalization — by, for example, offering micro-loans to help cover the cost of the naturalization application. The new cities joining New York, Los Angeles, and Chicago are Atlanta, Baltimore, Boston, Chattanooga, Denver, Milwaukee, Nashville, Philadelphia, Pittsburgh, Seattle, and Washington, D.C. By joining C4C, these cities are demonstrating their commitment to creating welcoming cities for immigrants.