Foster: Executive action on immigration was precedented, right thing to do
by Foster, on News
The immigration reforms by Obama, like previous presidents’ unilateral orders, will help the U.S.
President Barack Obama’s Thursday night announcement constitutes historic, sweeping and necessary action to not only do what is the right and humanitarian thing for the potential beneficiaries, but also what is right for the U.S. and our economy.
For the Houston region, the president’s order – deferring action on deportation for certain immigrants in the U.S. without authorization – could benefit a significant number of the estimated 400,000-plus people who are believed to be part of the undocumented population. These include fellow Houstonians, who, for the most part, have lived here for decades with no criminal record doing critical work from building our homes, commercial buildings and freeways, staffing our favorite restaurants, parking our cars, tending our lawns and cleaning our hotel rooms. The vast majority are doing the work that all immigrants have historically done, although a small percentage work in higher-skilled and even professional jobs.
For the first time, these individuals will have a certainty, without the ever-present fear, that they will not be detained and arrested when working or taking their children to school or shopping. They will be able to work “on the books” rather than in a cash economy and compete for decent-paying jobs. Without this or future congressional action, they would have no hope or legal options. (It is a myth that all they have to do is go home, get in line and enter like our immigrant forebears. Our system for legal immigration is far too broken.)
The new executive order also clarifies the president’s enforcement priorities, meaning suspected terrorists, convicted felons, convicted gang members, persons apprehended at the border, persons convicted of serious multi-misdemeanors and recent border crossers get detained and deported first. I don’t think anyone in America would disagree with this.
Additional actions enhance legal immigration – for instance, highly skilled individuals who are subject to lengthy quotas measured by years will be able to obtain interim work authorization. Other changes will allow more foreign entrepreneurs who make significant job-creating investments. The president will review options to recapture unused visa numbers and determine whether derivative family members (dependents) should be counted against the visa quotas in order to cut down on lengthy waiting periods under our highly restrictive quota system.
Obama took this action knowing full well that he would receive a tidal wave of criticism. However, little of that criticism holds up. The U.S. Supreme Court has given the president of the United States broad authority in the prioritization of enforcing immigration laws. Every president since World War II has used executive action to provide rights and benefits to large numbers of foreign nationals beyond what was statutorily provided. President Ronald Reagan in 1986 signed the Immigration Reform and Control Act, giving up to 3 million unauthorized immigrants lawful permanent residency status, a true amnesty and pathway to U.S. citizenship. He then used executive action to cover 100,000 more not included in the bill. In 1990, President George H.W. Bush provided deferred action to 1.5 million family members of IRCA beneficiaries, who accounted for over 40 percent of the estimated 3.5 million unauthorized immigrants in the U.S. at that time.
Incoming Senate Majority Leader Mitch McConnell has said that Obama’s action will prevent the newly elected Congress from passing immigration reform legislation. But the president did wait and worked behind the scenes with House Speaker John Boehner after the Senate passed bipartisan comprehensive immigration reform in June 2013. The House failed to enact any immigration legislation. While there is no reason to believe they will do so, there is absolutely nothing to prevent Congress from immediately debating and passing broad-based immigration reform, as supported by the Greater Houston Partnership. Obama has pledged to end his deferred action program if Congress were to so act.
Obama’s action, while it appears controversial, has accomplished the greater good at a time when we have the most secured borders in American history and the lowest rates of undocumented immigration since Richard Nixon was president. He has left the field wide open for the new Republican majority on Capitol Hill to show real leadership and put its own brand on this critical issue. Doing so is not only in the best interests of America, but, ironically, the Republican Party itself. In fact, unilateral executive action by the president of the United States in the field of immigration normally has preceded similar congressional action. There is every good reason why this precedent should be followed now.
Foster, chairman of Foster LLP, is chairman of the Greater Houston Partnership’s Immigration Task Force.