Barack Obama’s executive actions on immigration

Joe Biden released an immigration plan on Wednesday that focuses on undoing President Donald Trump’s policies while acknowledging critiques of his Obama-era record on the issue.

Biden, a frontrunner in the Democratic primary, has positioned himself as former President Barack Obama’s natural successor. His plan touts his record as vice president, including his support of Deferred Action for Childhood Arrivals (DACA), Obama’s plan to give temporary protection to unauthorized immigrants brought to the US as children.

In 2014, President Obama announced a series of executive actions on immigration, including two new programs to grant “deferred action” (protection from deportation) and work permits to unauthorized immigrants in the United States.

One program would protect unauthorized immigrants who’d come to the US as children but were now older than 30 (expanding a deferred-action program that’s been around since 2012). The other would protect parents of US citizens and permanent residents who’d been in the US for at least 5 years. Taken together, the two would protect about 4 million unauthorized immigrants from deportation.

David Leopold wasn’t sure if his client, Max Villatoro, had been deported back to Honduras late on the night of March 19 or early in the morning of March 20. Villatoro, an Iowa pastor, had called Leopold late Thursday night in a panic, saying he was about to be deported. Leopold spent Friday morning scrambling for confirmation from Immigration and Customs Enforcement (ICE). On Friday afternoon, he received the following email from ICE: “Good afternoon. This is to inform you that your client Mr. Villatoro has been removed to Honduras. He has landed. Thank you.”

The ruling the administration is asking the Fifth Circuit to “stay” is the one Judge Andrew Hanen issued in February. It’s a temporary injunction — that means it’s not a final ruling on whether or not Obama’s immigration actions are unconsitutional or illegal, but it prevents them from going into effect while the courts consider those questions.

Technically, the Fifth Circuit isn’t reviewing whether or not the injunction itself was appropriate. They’ll be looking at whether it would be appropriate to let it go into effect, or not — essentially, whether to put an injunction on the injunction.

The union representing US Border Patrol agents is on the attack against President Obama for, as they put it, “threatening” agents, claiming that he’s trying to force them to implement his executive actions on immigration even after a federal ruling blocking those actions from going into effect.

That’s not exactly true. A federal judge blocked the administration’s attempt to allow millions of unauthorized immigrants to apply for protection from deportation, but it didn’t keep the government from making decisions about who it should and shouldn’t deport. In fact, in the wake of the court ruling, federal immigration policy depends on what rank-and-file agents do in a way it never has before. Immigration agents have more power than anyone else in determining who gets deported — and, accordingly, have the responsibility to make sure that’s in line with the administration’s policy.

Last night, President Obama conducted a town hall on immigration in Miami. Media coverage of how the town hall went has already split into at least two camps. MSNBC, which aired the debate (along with its affiliated Spanish-language network Telemundo), described Obama as “fiery” in attacking Republicans on immigration. Other outlets, like Time Magazine, focused on the questions that Obama got asked by attendees — and characterized the president as reassuring, trying to “stave off deportation woes.”

The thing is that both of those are true. The president was both fiery and reassuring last night — and he’ll probably continue to be both, as he continues an outreach campaign to educate immigrants about his 2014 executive actions offering protection from deportation to millions. That’s because, with those executive actions temporarily blocked by a federal judge, the president needs to sell two different messages — which are often at odds with each other.

A federal judge in Texas on Monday threw a wrench into Obama’s immigration policy by stopping the rollout of two programs to protect millions of unauthorized immigrants from deportation. Now what?

This is the beginning of a pitched legal battle, and the first phase could be settled within days — or remain in limbo for months. The lawsuit doesn’t just affect the Obama administration: it creates uncertainty for immigrants who would have been protected, and could shape some ongoing battles on Capitol Hill.

On Monday night, federal judge Andrew Hanen temporarily blocked the Obama administration from rolling out two new programs allowing unauthorized immigrants to apply for protection from deportation. That’s a big deal, at least in the short term — it means that relief is delayed for millions of people. And it may cause a chilling effect that damages the long-term success of these programs. But arguably, the most important thing about the court ruling is what it doesn’t do: decide whether Obama’s executive actions were legal or constitutional. Check out this sentence, buried in a footnote toward the end of the ruling:

The primary reason that Judge Hanen halted the executive actions was that he found that the administration hadn’t properly followed the Administrative Procedures Act — which sets the typical procedure for making federal regulations. According to Cecilia Wang, Director of the Immigrant Rights Project for the ACLU, Hanen’s ruling says that “if (the government) wanted to do these things, it should have provided notice in the Federal Register, with period for comment.” But because the Obama administration didn’t do that for these actions, the ruling says, it violated the law. (The other half of Judge Hanen’s ruling, saying that the states were allowed to sue the federal government to begin with, was also really narrow.)

A few weeks ago, Senate Majority Leader Mitch McConnell told reporters that he wasn’t going to talk about “what comes next” until the Senate’s plan A, passing the House bill, failed. Well, now it’s failed.

Speaker John Boehner is openly calling on the Senate GOP to take the lead from here — and specifically, to find a way to block the president’s executive actions. But that’s exactly what Democrats are uniting in opposition against.

The Obama administration’s starting to implement its executive actions on immigration from November 2014 — and their early guidelines just set up a fight with enforcement agents who are already ticked off at the White House.

Applications for the new “deferred action” program aren’t expected to open up until spring. But federal immigration agents are already being told to consider whether immigrants in their custody might qualify for the new program — and not to deport them if they might.

At her confirmation hearing Wednesday, Attorney General nominee Loretta Lynch offered a provocative answer to a question about Barack Obama’s actions on immigration, remarking that prosecutors should in fact be able to deport immigrants eligible for “deferred action” under Obama’s actions.

The answer got attention for obvious reasons — it sounded like the AG nominee was saying the president’s much-hyped deferred-action program wouldn’t actually protect immigrants. But that’s not what she said.

It’s hard to argue that the existing Deferred Action for Childhood Arrivals program, which has granted protection from deportation to about 600,000 unauthorized immigrants, is an acceptable use of presidential authority, but the new deferred-action program wouldn’t be. After all, they both follow the same model: unauthorized immigrants who meet certain requirements will be able to apply for temporary protection, and have to renew that protection every few years. Any of the legal criticisms that apply to the new program apply to the existing one as well.

But the DACA program wasn’t controversial when it was first announced — it’s only become politically controversial in retrospect, as Obama started contemplating (and eventually took) executive action to give relief to a broader set of unauthorized immigrants. So the GOP didn’t sue Obama in 2012, or even in 2014, over the existing program.

Politicians on both sides say that the Obama administration’s executive actions on immigration from November 2014 will protect millions of unauthorized immigrants from deportation, often citing a number in the range of 5 million. But that’s probably not true — because no one’s automatically being granted protection from deportation. Immigrant parents of US citizens and green-card holders who qualify for the program that President Obama announced in November have to apply in order to actually receive deferred action (a temporary grant of protection) and a work permit. So to get an accurate count you need to estimate: how many immigrants who are eligible will actually sign up?

The Congressional Budget Office tossed out one answer to this question on January 15. In a report about the possible budgetary impacts of the president’s executive actions, they estimated that 2 to 2.5 million unauthorized immigrants will have deferred action by 2017. But the CBO’s estimate isn’t authoritative — or even, necessarily, particularly well-grounded. And before anyone really knows how many people will apply for relief from deportation, there are big questions that still have to be answered about what the requirements are going to be — and how effectively activists and community groups will be able to reach unauthorized immigrants and help them apply.

The House of Representatives just approved a bill to fund the Department of Homeland Security through this fall — on the condition that Obama agrees to roll back several policies that would protect unauthorized immigrants from deportation. It’s the Republicans’ opening play in their fight against the executive actions on immigration Obama took in November 2014, but it’s also a statement of what the House Republican conference thinks should happen to the 11 million unauthorized immigrants currently living in the US. Their answer: unauthorized immigrants should be living under the constant threat of deportation, but the US government doesn’t necessarily need to make an actual effort to deport them.

This would be a big shift from current policy — not least for unauthorized immigrants themselves. But it’s also a long way from pushing “mass deportation” of unauthorized immigrants. And while it’s based in the same principle as the doctrine of “self-deportation” that Mitt Romney popularized a few years ago, it’s not quite that either.

Now that Republicans control both chambers of Congress, they’re ready to take on Barack Obama on immigration.

They’re seething about what they see as repeated executive overreach by the president in the final months of last year, especially when it came to his actions to protect millions of unauthorized immigrants from deportation.

According to a new ABC News/Washington Post poll, a slim majority of Americans — 52 percent — approve of Obama’s recent executive actions on immigration.

But the most revealing thing in the poll isn’t how Americans react to the new actions; it’s something that hasn’t changed. From the poll release:

1) Just because Congress didn’t do anything doesn’t mean the President can. The judge interprets Obama’s comments when he issued the executive actions, saying that “The day Congress passes a bill, (these) will no longer be necessary,” as a confession that his actions were the equivalent of a legislative action. Judge Schwab explicitly says that Obama’s actions “constitute legislation,” and refers to them as “legislative actions” in the ruling.

2) The executive actions are too defined in their standards for who is and isn’t eligible for protection from deportation. Ironically, this turns one of the Administration’s own arguments on its head. The White House has argued that its new programs fall within the president’s authority to protect immigrants from deportation on a case-by-case basis — even though they could end up granting “deferred action,” or three years of protection from deportation and work permits, to millions of unauthorized immigrants. Their reasoning for this is that they’re setting specific guidelines for who will and won’t be eligible to apply for deferred action, so that they’re not just issuing blanket protections to a whole group.

The bill the House just passed would ban the Department of Homeland Security from giving relief from deportation, or work permits, to any “category” of immigrants who are here unlawfully, or who come unlawfully. The government could still issue protections from deportation — but they would have to be on a case-by-case basis.

Republicans believe that this would prevent President Obama from implementing the executive actions he announced last month, which would allow about three and a half million unauthorized immigrants to apply for protection from deportation and work permits. But here’s the problem for Republicans: the Obama administration maintains that its new program is “case-by-case,” not categorical. So according to the administration, even if the bill somehow passed into law — which it’s extremely unlikely to do — it wouldn’t actually ban anything the president is actually doing.

As Republicans try to fight back against President Obama’s recent executive actions on immigration by arguing they were illegal or unconstitutional, they’ve found an interesting constitutional authority who supports their case: President Obama, circa 2011.

In the early years of the Obama administration, in 2010 and 2011, the president argued repeatedly that he wasn’t able to do anything more than he was already doing to protect immigrants from deportation. In 2012, however, he rolled out the Deferred Action for Childhood Arrivals program, which allowed over a million unauthorized immigrants to apply for temporary deportation protection (and is the program that Obama’s new executive actions are build on). That’s exactly the kind of broad relief that immigrant activists had been calling for in 2011, and that Obama had said he wasn’t able to do.

Last year, Alfonso Moreno-Gonzales was living as an openly gay man in the US. Today, Moreno, a 32-year-old from Mexico, keeps his sexual orientation a secret out of fear for his life — simply because he was deported back to Mexico.

“You can’t express yourself the way you are” in Mexico, Moreno said. “If you are just walking in the street, it can be dangerous for your health.”

It’s not just deportation policy. As I described in a recent feature, Obama has effectively modified or refused to enforce key provisions of laws ranging from the Affordable Care Act to No Child Left Behind. He really has expanded the scope of executive power in some novel ways.

So at a moment when many liberals are cheering Obama for taking action on deportation policy, it’s worth considering how future Republican presidents could use these precedents to their own ends. Several commentators have been floating various possibilities about how the GOP could take advantage of those powers in ways Democrats would surely hate. “What if a Republican president announced that he would stop enforcing the payment of estate taxes? Or suspend enforcement of regulations on industrial pollution?” wrote Jonathan Chait.

President Obama’s executive actions on immigration will boost the economy — modestly.

The order is expected to give around 4 million unauthorized immigrants three years of relief from the threat of deportation, along with work permits. That will boost both jobs and economic growth, a new report suggests.

There’s one way President Obama’s executive action on immigration has been a boon to Republicans. Instead of coming up with their own immigration policy, the’ve been able to just unite against Obama’s. But fury isn’t a policy. And, as is clear, fury isn’t going to stop Obama’s policy.

But there is a simple way out of this immigration mess for Republicans: pass a bill that President Obama can sign.

President Obama addressed the nation tonight about his new executive actions on immigration. For an explainer about what the new actions mean, click here.

Here’s the text of the speech:

In 2013, journalist, activist, and unauthorized immigrant Jose Antonio Vargas sat before a committee of the US Senate and asked the federal government, “What do you want to do with me?”

Now he has his answer.