Politics & Policy

Immigration Policy by Executive Fiat

(President Obam: Chip Somodevilla/Getty Images)
Obama contemplates constitutionally dubious changes on both legal and illegal immigration.

When the Senate passed its version of comprehensive immigration reform, it aimed to appeal to a coalition dominated by ethnic activists and big business. The Senate immigration package — consisting principally of immediate legalization for millions of illegal immigrants, promises of enforcement, revisions of the legal-immigration system, and the expansion of guest-worker visa programs — would have fulfilled that coalition’s desires for the legalization of illegal immigrants and cheap labor. A popular outcry might have stopped the Senate immigration bill, but perhaps President Obama’s executive orders will gratify this coalition’s appetites after all. In a series of closed-door meetings, representatives from big business and other organizations have been pushing hard for an expansion and revision of some U.S. visa programs. Corporate America has allied with groups such as the League of United Latin American Citizens and American Families United to urge the president to push through changes to the legal-immigration system and grant work permits to millions of current illegal immigrants.

The president’s rumored decision to legalize and grant work permits to millions of illegal immigrants has dominated media discussions of the administration’s potential executive fiats on immigration. However, decisions to revise the legal-immigration system could also be consequential. The prospect of the legalization of illegal immigrants combined with a revision of the legal-immigration system suggests that the Obama administration’s potential executive orders on immigration would go far beyond tiny administrative tweaks and minor exertions of prosecutorial discretion; they might instead be major and unilateral revisions of U.S. immigration policy.

Many of the proposals put forward in these closed-door meetings focus on changing the way that visas are counted; in the short term at least, these changes would probably lead to a substantial increase in legal immigration. They could affect both permanent immigrants and guest workers. One major proposal would change the ways green cards are counted. Under limits established in 1990, the United States can offer 226,000 family-based and 140,000 employment-based green cards annually. For decades, green cards issued both to principals and to their dependents count against this cap. For example, if a researcher from Sweden earns an employment-based green card and she brings along a husband and three children, a total of five of the 140,000 employment-based green cards would be used (one for the researcher — the principal — and four for her dependents). Advocates would like the Obama administration to make a ruling so that only principals count against this cap; the green cards issued to dependents of a principal would not in this case count toward those limits. Under this scenario, the immigration of the Swedish researcher would still cause five green cards to be issued, but only one green card would be counted toward the 140,000 limit. Counting principals only against visa limits could also apply to the “diversity lottery” of 50,000 visas, potentially doubling the number of immigrants from that pool.

Over the short term, counting principals only against the cap of legally issued green cards would cause a substantial spike in legal immigration. Some proponents of this measure estimate that it could cause the number of available family- and employment-based green cards to swell in the first year from 366,000 to 800,000, an increase of nearly half a million. According to the Department of Homeland Security, about a million permanent-residency visas have been issued each year since the early 2000s (it was lower in much of the 1990s), so an increase of half a million would be about a 50 percent jump.

People who urge the administration to take this course of action argue that it would significantly reduce the backlog of immigrants waiting in line to enter the country legally. They also argue that, despite the long-standing precedent for counting both principals and dependents toward the green-card cap, legislative language does not actually specify whether or not dependents must be counted against the cap. Interestingly, the immigration bill that passed the Senate last summer would have accomplished legislatively many of the things that advocates are now demanding the president take action on. For instance, the Senate immigration bill specified that dependents would no longer count against the cap for employment-based green cards, and it also would have revised regulations to clear the backlog for family-based immigration.

A related proposal pushed by Compete America, a coalition of corporate interests (including Facebook, Google, Microsoft, the U.S. Chamber of Commerce, and Walmart), and other groups would involve the “recapture” of green cards from past years. Though the federal government has limits for how many green cards it can issue each year, these limits are not met every year due to the arcane intricacies of U.S. immigration law. “Recapturing” green cards would bring back these unused green cards from past years, allowing the government to issue them. This “recapturing” could total more than 200,000 green cards (and, if dependents are not counted against this total, could mean that visas would be issued to a number far greater than the “recaptured” number of green cards).

Another proposal could substantially increase the number of guest workers in the United States by granting visas to the spouses of H-1B visa-holders. The administration already has proposed granting visas to the spouses of certain H-1B visa-holders, and some estimate that this smaller proposal would cause about 97,000 new guest-worker visas to be issued the first year, with about 30,000 in succeeding years. Here again, the administration would seek to accomplish through executive power what the Senate’s Gang of Eight bill would have accomplished legislatively; expanding guest-worker programs, combined with issuing visas to the spouses of guest workers, was a major component of the Senate immigration bill.

The various forces asking for the president to take executive actions on immigration do not speak with a unified voice. Some advocates of counting only principals toward green-card caps are more skeptical about the president’s ability to “recapture” unused green cards unilaterally, for example, arguing that such a power belongs to the legislative rather than the executive branch.

Moreover, even many of those who support executive action on changing immigration policy realize how potentially revolutionary these steps could be in their scope. One of the staunchest advocates of presidential action on immigration policy, Compete America, also admits that counting only principals against green-card caps would be a “marked departure” from current federal policy.

These potential actions occur in the context of a deepening controversy over executive authority and immigration policy, and of an increasing economic anxiety on the part of the middle class.

Numerous polls show the Obama administration significantly underwater on the issue of immigration. A Pew poll taken in late August found that only 31 percent of Americans approve of the president’s immigration policies. A poll released this summer by respected Republican pollster Kellyanne Conway found that only 21 percent of voters — including only 40 percent of Democrats — want the president to act on his own on immigration. Moreover, nearly every poll taken on immigration shows that very few Americans want to increase the rates of immigration. Partly in response to this unpopularity, endangered Democratic Senate incumbents from Alaska to North Carolina to New Hampshire have scrambled away from the president on immigration, arguing that he should not use his executive authority to make sweeping changes. This lack of popular support may be one of the reasons the White House is reportedly mulling a delay of executive action until after the 2014 midterm elections.

Even as the White House ponders taking action on immigration, it is also considering a series of unilateral actions on everything from tax policy to dishwasher regulations. Many leftist activists, afraid that a GOP-led Congress would not implement many top leftist priorities, have called upon the White House to go it alone. However, an increasing number of voices on the left, right, and center have expressed concern about the deeper constitutional dangers of a president’s replacing the legislative process with executive whim. On immigration, these worries have been particularly keen. More and more newspaper editorial boards — including those of the Washington Post, USA Today, and the Chicago Tribune — have advised the president against going it alone on immigration policy.

Even as some sections of corporate America, claiming a lack of workers, are pushing for more guest workers and a reduction of immigration enforcement, a growing body of evidence suggests that more and more Americans are being economically left behind. A recent report put out by Sentier Research estimates that, when adjusted for inflation, the median household makes less now than it did in mid 2009 (and substantially less than it did in 2000). This economic decline has hit workers without a four-year college degree particularly hard. Despite the complaints of many tech executives, a May 2014 report by the Center for Immigration Studies indicates that there is no shortage of workers in technical fields. Anxiety about the breakdown of the ladder of opportunity for the middle and working classes helped galvanize opposition to the Senate immigration bill, which, many feared, would have increased downward pressure on the wages of the average American.

For many years, President Obama denied that he had the power to take unilateral action on immigration, but now, facing congressional opposition, he seems ready to claim that authority. For many of the interests that supported the Senate immigration bill, appealing to the White House gives them a second bite at the apple; they hope that he will accomplish through executive power part of what they had hoped to accomplish legislatively. Ironically, the president’s actions may forestall any future legislative action on immigration by igniting a political firestorm and, some fear, precipitating a constitutional crisis. Behind closed doors, the president and his team may be contemplating actions that would significantly transform the legal-immigration system, legalize millions of illegal immigrants, exacerbate the economic anxieties of many Americans, and kick off a broader public debate about the limits of executive power.

— Fred Bauer is a writer from New England. He blogs at A Certain Enthusiasm, and his work has been featured in numerous publications.


The Latest