On Nov. 20, 2014, Barack Obama pushed, without the support of Congress, the Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA), which seeks to give work permits to, and stop deportations of, parents of U.S. citizens, as well as to expand the coverage of the Deferred Action for Childhood Arrivals program (DACA), which benefits the children of those undocumented immigrants who entered the country as children. These programs would benefit more than 5 million undocumented immigrants, according to the estimates of Jeffrey Passel and Eileen Patten.*
U.S. presidents have a tool that allows them to implement or modify a law when domestic policy demands it or in times of war; this is the so-called executive order. And even though it is an instrument not clearly defined in the U.S. Constitution, the reality is that, as Vivian S. Chu and Todd Garvey point out, executive orders are accepted “as an inherent aspect of presidential power and have the force and effect of law.” And despite the lack of clarity regarding their nature, several presidents have used them since the founding of the United States.
However, this instrument can be modified or revoked by different means. One of them is through Congress, which can hinder the granting of the necessary funds to conduct the proposed changes. This was attempted in regard to President Obama’s case, when the Department of Homeland Security (DHS), in charge of implementing the DACA and DAPA programs, was denied funds. Even so, as this meant seriously compromising national security, Congress had to approve the budget without further objections on March 3.
The other way is through the courts, and Republicans have set that in motion too. On Feb. 16 of this year, federal Judge Andrew Hanen issued a temporary suspension of Barack Obama’s executive action, holding that Obama’s administration has not fulfilled procedures governing this mechanism. The Department of Justice (DOJ) responded by filing an appeal before Judge Hanen’s court in Brownsville, Texas, in order to lift the injunction that temporarily suspended the executive action. Faced with this, Judge Hanen requested more time and delayed his response until March 19, when he said that he might impose sanctions on the Department of Justice because he thinks the government misled him about the date it started to apply one of the measures present in the executive order. The problem is that the clock is ticking, and so far, there has been no judgment or sanction, according to Associated Press correspondent Juan Lozano.
The strategy of prolonging the process and leaving the DACA and DAPA in judicial limbo for as long as possible could be due to the fact that only two executive orders have been overturned by the judiciary branch, according to Mark Koba of CNBC. Therefore, the judiciary would be betting on yet another way, which is to reach the next election so that the new president, whom they expect to be Republican, removes the possibility of the changes proposed by Barack Obama completely. Otherwise, if DAPA and DACA take effect, even though the new president can revoke the executive actions of a previous president, the truth is it would be almost impossible to take away the documentation of nearly 5 million people. As Judge Hanen himself recognizes when discussing the subject, “There will be no effective way of putting the toothpaste back in the tube.”
The presidential elections are not that far away, and Republicans believe they will have a presidential victory, as a CNN electoral research poll for 2016 shows that one of the electoral preferences is the Republican Jeb Bush (former governor of Florida, son and brother of two former presidents), who would be a strong competitor for Hillary Clinton, who is emerging as the candidate of the Democratic Party.
Barack Obama is aware of this situation, which is why he is trying to reach the U.S. Supreme Court, where he expects to win, as so far, this has been the historic tendency regarding executive actions.
The fight in the courts has turned into a race against time, both for Republicans, to prevent immigrants from coming out of anonymity, and Democrats, who not only have a commitment to immigrants, but because it would also be an important asset in winning the next election.
*Editor’s note: Jeffrey Passel is a senior demographer, and Eileen Patten, a research analyst at the Pew Research Center.