Originally Published in The Hill
Nolan Rappaport - August 6, 2020
The Biden “plan for securing our values as a nation of immigrants” raises serious concerns. He intends to work with Congress to reform our immigration laws, but his reform plans are limited to benefit provisions. He intends to deal with the harsh statutory enforcement provisions and inadequate relief provisions in the Immigration and Nationality Act (INA) the way former president Barack Obama did: Ignore them and decide for himself which deportable aliens should be deported.
Frankly, I share Biden’s concern about the enforcement measures in the INA.
In fact, 20 years ago I was detailed to the House Judiciary Committee from the Justice Department to address the enforcement provisions in the INA. The Democrats on the committee needed an immigration law expert to write a bill that would restore fairness to those provisions.
After spending many hours listening to the concerns of immigration advocacy groups, I wrote the Restoration of Fairness in Immigration Act of 2002, which was introduced by Representative John Conyers with 41 cosponsors.
It wasn’t passed, and the enforcement problems I spent so much time working on still exist, but I think the statutory provisions Congress put in the INA should be followed until Congress changes them. Here’s why:
Separation of powers
Article 1 established the Legislative Branch (Congress) to create the laws. Article 2 established the Executive Branch (the president) to approve and carry out the laws created by the Legislative Branch. And Article 3established the Judicial Branch (the courts) to interpret the laws passed by the Legislative Branch.
Biden’s plan for enforcing the immigration laws
Biden intends to follow the approach that the Obama-Biden administration took with immigration enforcement measures, which was to prioritize enforcement resources on removing threats to national security and public safety, not families.
He views this as restoring sensible enforcement priorities. According to Biden, it is counterproductive to target families and people who have never been convicted of a serious criminal offense and who have lived, worked, and contributed to our economy and our communities for decades.
The removal grounds that congress wrote do not exempt deportable aliens because they are part of a family or because they are not a threat to national security or public safety. The enforcement provisions, however, do include discretionary relief from deportation for circumstances congress deemed to warrant such relief.
Would Biden’s enforcement plans be unconstitutional?
If Biden replaces Trump in the White House, the constitutionality of rewriting the INA’s enforcement provisions by executive fiat will be decided by the courts.
It is a virtual certainty that the Republicans will challenge the constitutionality of Biden’s enforcement policies — and of executive orders that reverse Trump’s enforcement measures. The Democrats have shown how effective this tactic is with their constitutional challenges to Trump’s immigration measures.
The Obama-Biden administration took affirmative steps to prevent deportable aliens who were not in a priority category from being deported.
In a memorandum dated Nov. 20, 2014, Homeland Security Secretary Jeh Charles Johnson informed USCIS, CBP, and ICE officers that they were prohibited from apprehending, detaining, or removing an undocumented alien who was not in a priority category unless, “in the judgment of an ICE Field Office Director, removing such an alien would serve an important federal interest.”
This made enforcement so difficult for ICE officers that ICE’s union claimed that DHS had abandoned its core mission of enforcing the immigration laws. The union president, Chris Crane, testified at a hearing before the Senate Judiciary Committee that ICE officers were prohibited from enforcing all of the immigration laws they took an oath to enforce.
For instance, they were not permitted to arrest aliens solely on charges of illegal entry or visa overstay, which were the two most frequently violated sections of the INA.
This is not the only thing in Biden’s plan that may violate the separation of powers provisions. He also intends to reinstate DACA if Trump succeeds in terminating it, and he has not indicated that he will change the program to eliminate the benefits it provides that are prohibited by Congress.
In a recent DACA decision, the Supreme Court concluded that DHS was bound by the Attorney General’s determination that DACA is illegal because it extends Federal public benefits to unqualified undocumented aliens despite the fact that Congress has prohibited them from receiving such benefits.
It may not be as desirable politically to continue the program without those benefits.
The right way to help undocumented aliens
If Biden becomes the president, he can help the DACA participants and establish enforcement measures that reflect his perception of our values as a nation of immigrants by working with Congress on immigration reform legislation that includes these objectives.
I think Republican cooperation is possible. Furthermore, I am not convinced that the Democrats have made a serious effort to obtain such cooperation, or that they really want to pass immigration reform legislation in any event.
They could have passed any immigration reform bill they wanted — without a single Republican vote — during the first few years of the Obama-Biden administration. From January 2009 to January 2011, they had the majority in the House, and until Scott Brown’s special election in 2010, they had a strong enough majority in the Senate to stop a filibuster.
And voters had reason to expect immigration legislation. When Obama was campaigning, he said, “I can guarantee that we will have, in the first year, an immigration bill that I strongly support.”
Will it be different this time if Biden is elected and the Democrats regain control of congress?
Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him on Twitter @NolanR1 or at https://nolanrappaport.blogspot.com.