FAIR Legislative Update June 19, 2012
Obama Administration Unilaterally Implements the DREAM Act; Adds Over 1.4 M Workers to the Labor Market
On Friday, the Department of Homeland Security announced that it intends to circumvent Congress and administratively implement the DREAM Act, adding roughly 1.4 million workers to the U.S. labor market.
In the announcement, Homeland Security Secretary Janet Napolitano stated that, effective immediately, her Department will stop deporting illegal aliens who meet the criteria for the DREAM Act and that such aliens will now be eligible for work authorization.
Homeland Security announced that this new policy would be affected by granting "deferred action" to illegal aliens. Deferred action status is what DHS grants when it decides, in its own discretion, not to remove an illegal alien. Those who receive deferred action are by regulation also eligible to receive work authorization. (8 C.F.R. 274a.12(c)(14)) There is no statutory basis for deferred action status, as it is merely referred to in the federal regulations (See, e.g. USCIS Ombudsman memo, Apr. 6, 2007 (citing 8 C.F.R. 274a.12(c)(14))). Even more troubling, deferred action is not subject to judicial review. (Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 484, 492 (1999))
Under the new policy, in order to be eligible for deferred action, an illegal alien must:
- Have come to the United States under the age of sixteen;
- Have continuously resided in the United States for at least five years preceding the date of this memorandum and be present in the United States on the date of this memorandum;
- Currently be in school, have graduated from high school, have obtained a general education development certificate, or be an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
- Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
- Not be above the age of thirty.
In addition, the illegal aliens must also complete a background check and, for those individuals who make a request to USCIS and are not subject to a final order of removal, must be 15 years old or older. Although this new policy is effective immediately, Secretary Napolitano has directed U.S. Citizenship and Immigration Services (USCIS) to create an application process that will be fully operational within 60 days. Secretary Napolitano estimates that over 800,000 illegal aliens will be given a reprieve through its new policy, however, the Pew Hispanic Center and the Migration Policy Institute both estimated that in fact roughly 1.4 million illegal aliens would actually benefit. (Pew Hispanic Center release, June 15, 2012)
Thus, with a magic wand, President Obama has added 1.4 million workers to a job market that is already suffering from an unemployment rate of over 8 percent. And this number does not take into account the additional number of illegal alien workers that will be added to the workforce through fraud. The impact will be particularly severe on young Americans, as the unemployment rate for teenagers is 24.6 percent, and one in two recent college graduates are either unemployed or underemployed. (Bureau of Labor Statistics, June 1, 2012; Associated Press, Apr. 23, 2012) Moreover, the scope of the Administration's new amnesty program (one that is certainly not intended to provide only temporary relief) belies the Administration's claim that it will grant deferred action to illegal aliens on a "case-by-case" basis. The Obama Administration intends to abuse the process of deferred action to grant amnesty to an entire class of illegal aliens who will now compete with American workers.
Nevertheless, the President vigorously defended his actions Friday at a White House press briefing. There, President Obama insisted his proposal was not amnesty or immunity, but a new policy that would "mend" the nation's immigration system, make it "more fair, more efficient, and more just." The President offered no legal justification or grounding for his actions, most likely because he has already acknowledged that he has none. Just last year, the President told an audience of school students that he did not have the authority to unilaterally suspend deportations. More specifically, the President said:
With respect to the notion that I can just suspend deportations through executive order, that's just not the case, because there are laws on the books that Congress has passed …. Congress passes the law. The executive branch's job is to enforce and implement those laws. And then the judiciary has to interpret the laws.
There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply through executive order ignore those congressional mandates would not conform with my appropriate role as President.
(White House press release, March 28, 2011)
Not long after the announcement, criticism began to pour in. Many Members of Congress decried the President's new policy for ignoring the Constitution, circumventing Congress, and abusing the process of deferred action by granting it to an entire class of individuals. Some of the President's critics included:
Rep. Lamar Smith (R-TX), Chairman of the House Judiciary Committee: "President Obama's decision to grant amnesty to potentially millions of illegal immigrants is a breach of faith with the American people. It also blatantly ignores the rule of law that is the foundation of our democracy. This huge policy shift has horrible consequences for unemployed Americans looking for jobs and violates President Obama's oath to uphold the laws of this land." (Smith press release, June 15, 2012)
Senator Grassley (R-IA), Ranking Republican on the Senate Judiciary Committee: "The President's action is an affront to the process of representative government by circumventing Congress and with a directive he may not have the authority to execute... On top of providing amnesty to those under 30 years old, the administration now will be granting work authorizations to illegal immigrants at the same time young Americans face record-high unemployment rates." (Grassley press release, June 15, 2012)
Rep. Steve King (R-IA): "Americans should be outraged that President Obama is planning to usurp the Constitutional authority of the United States Congress and grant amnesty by edict to 1 million illegal aliens. There is no ambiguity in Congress about whether the DREAM Act's amnesty program should be the law of the land. It has been rejected by Congress, and yet President Obama has decided that he will move forward with it anyway." (King press release, June 15, 2012)
Senator Jeff Sessions (R-AL): "With its announcement today, the Obama administration has openly declared to the American people that it is determined to contravene the immigration laws of the United States, circumventing the will of the people and authority of its representatives in Congress. In fact, this policy is far broader than the version of the DREAM Act rejected by Congress on a bipartisan basis and contains almost no enforceable limits and requirements." (Sessions press release, June 15, 2012)
Rep. Brian Bilbray, Immigration Reform Caucus Chairman: "I am extremely disappointed in the Administration's announcement to ignore U.S. immigration law by creating yet another ‘backdoor amnesty' policy, particularly after denying for months that they were even considering it. The timing of this announcement is politically motivated and the policy in possible violation of the law. How can we expect anyone visiting our country to respect our laws when the administration is unwilling to enforce or chooses to ignore them? This mixed message will only encourage more illegal immigration and contribute to more deaths along the border." (Bilbray press release, June 15, 2012)
Senator David Vitter (R-LA): "President Obama still isn't serious about immigration reform — just the politics of it. Serious immigration reform leadership would first focus on securing our border and enforcing the laws already on the books. And it certainly wouldn't be granting blanket amnesty before tackling those first two big challenges." (Vitter press release, June 15, 2012).
Similarly, FAIR issued a press release that blasted the Obama Administration for its wholesale abandonment of the rule of law. "Over the past ten years, Congress has repeatedly rejected the DREAM Act. Now, five months before the presidential election, the Obama administration is unilaterally rewriting our immigration laws, defying Congressional authority and threatening our constitutional framework," said Dan Stein, president of the Federation for American Immigration Reform (FAIR). (FAIR press release, June 15, 2012) FAIR also issued an action alert, asking our members and activists to call the White House, the Department of Homeland Security, and their Members of Congress in protest. (FAIR action alert, June 15, 2012)
Not surprisingly, amnesty advocates rejoiced at Friday's news. Rep. Luis Guitierrez (D-IL) called the President's new policy "the right thing to do" and said he was "proud the President has acted." (Gutierrez press release, June 15, 2012) Similarly, Janet Murguia, President of the National Council of La Raza, described the President's actions as "ground-breaking" and exclaimed, "Today we celebrate." (La Raza press release, June 15, 2012) Frank Sharry, the Executive Director of America's Voice said: "This is huge. As a result of today's decision, hundreds of thousands of young people who are American in all but paperwork will have the opportunity to live freely, work legally, and contribute to the country they love." (America's Voice statement, June 15, 2012)
In contrast to the reactions from true immigration reformers and amnesty advocates, Governor Mitt Romney had only a muffled reaction to the Obama Administration's announcement that it would stop deporting an entire class of illegal aliens. At a campaign stop in New Hampshire on Friday, Romney merely stated: "It's an important matter to be considered and should be solved on a long-term basis so they know what their future would be in this country…. [A]n executive order, of course, is a short-term matter. It can be reversed by subsequent presidents." (Fox News Latino, June 16, 2012) To true immigration reformers, this anemic statement stands in sharp contrast to Governor Romney's promise to veto the DREAM Act, which he made during the Republican primary. (Id.)
Moving forward, the President's announcement will likely have a significant impact on the November elections. With the elections only five months away, President Obama no doubt hopes to energize Hispanic voters and a small slice of his Democratic base that advocates for open borders. But on a policy level, this move was undoubtedly also calculated to undermine a Supreme Court decision — expected any day — that will likely affirm the authority of local law enforcement officers to assist in immigration enforcement. Whether Americans will be turned off by such political pandering and strategic maneuvering remains to be seen. But Americans will immediately feel the impact on the job market, and it is this impact that will likely cast its own shadow over President Obama for the rest of the year.
In response to the Obama Administration's announcement that it was circumventing Congress by unilaterally changing U.S. immigration law to allow over 1.4 million illegal aliens to remain in the country and work, Sen. Marco Rubio (R-FL) told reporters that he no longer planned on introducing his version of the DREAM Act. At least not until after the November elections.
"People are going to say to me, ‘Why are we going to need to do anything on this now. It has been dealt with. We can wait until after the election,'" he said in an interview. (Wall Street Journal, June 18, 2012) "And it is going to be hard to argue against that." (Id.)
Sen. Rubio also expressed frustration over the President implementing his policy without consulting him. "We have never talked to anyone in the White House about their plans," he said. (Id.) "The only thing the White House has ever done about our ideas was to try to get some of the Dream Act kids [to] not work with us." (Id.) Rubio spokesman, Alan Conant, echoed his boss' sentiments in a separate interview. "Sen. Rubio was working hard to find a permanent solution to this issue, meeting with Republican Senators and Dream kid activists earlier this week, and we were not briefed — let alone consulted — before the Administration made his announcement." (The Hill, June 18, 2012)
Sen. Rubio had been talking about his plans to introduce a DREAM Act for months, but had yet to introduce any language. News reports indicated he planned on finally unveiling it sometime this month.
In a brief order handed down Wednesday, the Maryland Court of Appeals upheld a November referendum that could overturn the Maryland DREAM Act. (See Maryland Court of Appeals Order No. 131, June 13, 2012; see also Washington Post, June 13, 2012)
The DREAM Act — which allows illegal aliens who attended three years of high school in Maryland to receive in-state tuition at Maryland colleges and universities — was signed into law by Gov. Martin O'Malley last year. (SB 167)
Although Maryland residents subsequently obtained enough signatures for a referendum on this November's ballot to reverse the law, the open borders lobby, spearheaded by CASA de Maryland, quickly tied the referendum up in legal proceedings. (FAIR Legislative Update, June 6, 2011)
Specifically, the open borders lobby attempted to stop the referendum from appearing on the ballot by arguing that the referendum process could not be applied to the DREAM Act because the legislation is a spending bill. Arguing in the Court of Appeals just one day before it issued its order, Joseph E. Sandler, a lawyer for CASA de Maryland, argued the DREAM Act is a spending bill because it would lead to the governor directing more funds in future budgets toward education to accommodate illegal aliens seeking in-state tuition under the Act. Therefore, Casa argued, the DREAM Act is exempt from referendum under the Maryland Constitution. (See Maryland Court of Appeals Oral Argument No. 131, June 12, 2012; see also Maryland Constitution at Art. XVI § 2)
Defending the referendum, Matthew J. Fader, an assistant attorney general for the State of Maryland, countered that the Act does not direct the governor to set aside funds in his budget. (Id.) Rather, Fader argued, the legislation merely provides who is entitled to in-state tuition at state colleges and universities. While that could lead to the governor's eventual allocation of additional funds, he conceded, Fader maintained that the bill does not affirmatively require the governor to appropriate money. (Id.)
Without providing any reasons for its decision upholding the referendum, the Court stated it would issue a future opinion outlining its rationale. Maryland voters will now vote on whether to maintain or strike the DREAM Act from state law in November. (See Maryland Court of Appeals Order No. 131, June 13, 2012) Stay tuned to FAIR for details once the opinion is handed down...
On Monday, DOJ Assistant Attorney General Thomas Perez announced in a letter to Florida Secretary of State Ken Detzner that the DOJ will be suing Florida in federal court over the State's removal of ineligible voters, including illegal aliens, from its voter registry. (See Assistant Attorney General Perez Letter to Secretary Detzner, June 11, 2012; see also DOJ Press Release, June 12, 2012) "Because the State has indicated its unwillingness to comply" with DOJ's request for Florida to end its purge, Perez said, "I have authorized the initiation of an enforcement action against Florida in federal court." (See Assistant Attorney General Perez Letter to Secretary Detzner, June 11, 2012)
Responding to evidence that the Florida voter registry contains a significant number of ineligible voters, officials at the Florida Department of State began an investigation nine months ago, requesting assistance from the U.S. Department of Homeland Security (DHS). (See Sec. Detzner Letter to Chief Herren, June 6, 2012) To help the State purge its voter rolls of illegal aliens and other ineligible voters, the Florida Department of State asked DHS to grant Florida access to the federal Systematic Alien Verification for Entitlements (SAVE) Program. (See Email Correspondence between the Florida Department of State and DHS, 2011-2012) SAVE provides government agencies the ability to confirm a person's immigration status when seeking public benefits. (Read more about SAVE here.)
Yet, over the course of nine months, the Obama Administration has stonewalled Florida's multiple requests to utilize the database. (See Sec. Detzner Letter to Chief Herren, June 6, 2012) Publicly released emails between the Florida Department of State and DHS reveal lengthy delays in terse responses from DHS. (Id.; see also Email Correspondence between the Florida Department of State and DHS, 2011-2012)
With Florida's primaries approaching in August, DOJ Voting Section Chief Christian Herren, Jr. sent a letter to Sec. Detzner ordering the State to halt its purge, claiming that any voter removals by the State of Florida would be illegal, per the National Voter Registration Act. (See Chief Herren Letter to Secretary Detzner, May 31, 2012) According to the Act, purges of ineligible voters cannot take place within the 90-day period leading up to any federal election. (See 42 USC 1973gg)
Alleging the Department of Homeland Security's refusal to grant it access to the SAVE system left it with no choice but to purge its voter rolls within the restricted 90-day period, the State of Florida filed suit against DHS on Monday. (See Secretary of State Press Release, June 11, 2012) "I have a job to do to defend the right of legitimate voters," Florida Governor Rick Scott said. "We want to have fair, honest elections in our state and we have been put in a position that we have to sue the federal government to get this information." (The Hill, June 11, 2012)
Sec. Detzner went on to say that Florida's ambitions are in line with the National Voter Registration Act as they try to ensure the integrity of the ballots of legal voters, whereas the goals of the DOJ are to "grant greater protection against removal…to non-citizens…" (Id.) This could in turn be a violation of the Equal Protection Clause of the Constitution, Sec. Detzner wrote, which "guarantees the right to vote cannot be denied by a dilution of the weight of a citizen's vote." (Id.)
Florida has whittled the list of registered voters in question to 2,700 names, and is still requesting assistance from DHS to verify these names against the DHS immigration status list, to no avail. (Miami Herald, May 9, 2012)
Earlier this month, the Board of Trustees for the Metropolitan State College of Denver approved a measure to cut tuition rates for illegal aliens to near in-state levels. (Denver Post, June 8, 2012) All but one Board member voted in favor of the plan, arguing the matter should be left up to state lawmakers. (Id.; 850 KOA news radio, June 7, 2012)
To be eligible to receive the drastically reduced tuition rate, illegal aliens must meet the following criteria:
- attended a Colorado high school for at least three years;
- graduated from a Colorado high school or received a general equivalency diploma (GED) in Colorado; and
- are able to provide a statement that they are in good legal standing (notwithstanding violations of U.S. immigration law) and are seeking or intend to seek lawful status when eligible.
(See Board of Trustees Website, June 7, 2012)
Qualifying illegal aliens will pay drastically lower tuition rates than out-of-state U.S. citizens and legal permanent residents. Specifically, illegal aliens will pay only $3,358 per semester, as opposed to the $7,992 charged to out-of-state students and $2,152 charged to in-state students. (Denver Post, June 8, 2012)
The Board's decision, which mirrors that of the Colorado ASSET Act, was handed down a mere two months after the Colorado House defeated it. (CBS-Denver, June 13, 2012; see also FAIR Legislative Update Apr. 16, 2012)
The Metro State College Board's decision to enact the ASSET-like measure despite its rejection by the State Legislature has prompted the State's Attorney General, John Suthers, to review the legality of the new tuition scheme. (Denver Post, June 14, 2012) Suthers' statements thus far, however, suggest that the findings of his review will ultimately favor the Board's decision. He explained that while federal law prevents colleges and universities from granting benefits to an illegal alien that it does not offer to residents of other states, Metro State College might have found a "successful workaround" to the law by focusing on residency requirements rather than immigration status. (Id.)
If the new rate takes effect, it could apply to over 400 incoming and current illegal alien students at the college. (Denver Post, June 8, 2012)