Tuesday, October 19, 2021

Comprehensive Immigration Reform is Long Overdue

Guest blogger: Seena Taalomi, law student, University of San Francisco

The Failure of DACA.

            Under the Obama presidency, there was a brief moment when it seemed that immigration reform might become a key achievement. President Obama announced the Deferred Action for Childhood Arrivals (“DACA”) policy on June 15, 2012,[1] the 30th anniversary of the Supreme Court decision Plyler v. Doe.[2] However, DACA failed to provide meaningful and long-lasting relief for immigrants, as executive orders are prone to be disregarded or abrogated by later presidents.

            Subsequently, the Trump presidency exposed the weaknesses of executive orders and policies like DACA, as President Trump attempted to do away with DACA within his first year in office. Of course Trump soon found himself embroiled with legal battles, including challenges to his treatment of DACA, and the Supreme Court ultimately ruled that the Department of Homeland Security’s rescission of DACA was “arbitrary and capricious,” in violation of the Administrative Procedure Act (“APA”).[3] Nevertheless, the Supreme Court decision only preserved DACA for the time being. Future presidents who wish to do away with DACA now know that they simply need to come up with better reasons to do so in order to avoid violating the APA. And the state of Texas has recently successfully argued that DACA was not properly put in place by Obama in the first place.

            Currently, President Biden is in favor of DACA (which comes as no surprise since he was Vice President when DACA was announced). However, DACA still falls short of providing meaningful relief for most immigrants. President Biden has correctly stated that “only Congress can ensure a permanent solution by granting a path to citizenship for Dreamers that will provide the certainty and stability that these young people need and deserve.”[4] Nevertheless, with the current state of Congress, it seems unlikely that President Biden will be able to persuade Congress to enact immigration reform.

            When it comes to immigration reform, the last three presidencies can be summarized with the ebb and flow of DACA. Although DACA has provided relief for some, at this point it seems that DACA is a distraction from the bigger picture.

            It’s time to retreat from the DACA quagmire and look to alternative solutions for bringing about comprehensive immigration reform.

Possible Solutions for Immigration Reform.

            The obvious solution is for Congress to enact comprehensive immigration reform. Unfortunately, this seems unlikely given the deadlocked state of Congress. The current Senate is the oldest in American history,[5] and the past few years have been a continuous cycle where senior members of congress (e.g., Mitch McConnell and Nancy Pelosi) grapple until the two parties are deadlocked. This style of politics will never result in comprehensive immigration reform. Therefore, altering the identity of Congress needs to be a top priority for those in favor of immigration reform. This means that voters need to play the long game by chipping away at Congress and electing members who care about immigration reform. Moreover, immigration reform needs to be cast in a new light in order to appeal to both the DNC and the RNC.

Voters Capture the Attention of Both Parties.

            Latino voters continue to rise in the U.S.[6] Both the DNC and RNC are acutely aware of this trend. Therefore, a grass roots movement which ties immigration reform with the Latino vote could be appealing to both the DNC and the RNC. One inherent problem with this solution is that grass roots movements are not easy to organize, and another problem is that its success may depend on whether it receives adequate media coverage. Additionally, even if such a movement gains traction, it seems that the RNC might not have the stomach to approach the issue of immigration reform; the Trump style of politics may still be in effect, as far-right republicans like Ron DeSantis continue to cash in on Trump-style rhetoric. Consequently, it may be a stretch to sell immigration reform to the RNC when they are still unsure of their identity in the wake of Trump.

            Surprisingly, it is also unclear whether immigration reform is even a key issue for the majority of Latino voters. In 2020, Latino voters ranked the economy, health care, and COVID-19 as their top three issues.[7] Immigration was ranked number eight (but there were notable differences when separated by gender, with more Latina women ranking immigration as a top issue than Latino men). Consequently, immigration reform advocates may need to appeal to a broader demographic of voters to bring immigration reform into the national spotlight.

Immigration Reform Will Likely Require a Strong President to Rally Congress.

            Immigration reform needs at least a two-pronged approach. First, voters need to convince Congress that immigration reform is a key issue. Second, some president (either Biden or one yet to come) needs to convince the public, and Congress, that immigration is a key issue.

            To come full circle, this piece began by talking about how presidents have failed to enact immigration reform, but that was largely because DACA lacked permanence and stability. DACA certainly provided relief for many, and it continues to do so to some effect, but it may also be a distraction at this point. It’s time to look forward towards meaningful immigration reform.

            A comprehensive immigration reform bill needs to be passed by Congress. The right presidential candidate can still capture attention of the American public, and perhaps persuade Congress to enact meaningful immigration legislation, but waiting for the right candidate is not the only way to move forward.

            It’s time to get Congress to listen. To do so, the American public must also be convinced that immigration reform is long overdue.

 

[1] https://obamawhitehouse.archives.gov/the-press-office/2012/06/15/remarks-president-immigration

[2] Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982)

[3] Dep't of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891, 207 L. Ed. 2d 353 (2020)

[4] https://www.whitehouse.gov/briefing-room/statements-releases/2021/07/17/statement-by-president-joe-biden-on-daca-and-legislation-for-dreamers/

[5] https://www.washingtonpost.com/lifestyle/2021/06/02/senate-age-term-limits/

[6] https://www.pewresearch.org/fact-tank/2020/01/31/where-latinos-have-the-most-eligible-voters-in-the-2020-election/

[7] https://www.pewresearch.org/fact-tank/2020/09/11/hispanic-voters-say-economy-health-care-and-covid-19-are-top-issues-in-2020-presidential-election/

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https://lawprofessors.typepad.com/immigration/2021/10/comprehensive-immigration-reform-is-long-overdue.html

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