Rishi Oza
By Rishi P. Oza
President Joe Biden recently announced a sprawling Executive Action (“EA”) attempting to tackle the ongoing migrant crisis impacting the nation’s southern border. The new action, which aims to curb the ability of migrants to claim asylum between ports of entry during surges at the border, amounts to one of the most restrictive measures governing access to asylum in decades. It effectively provides Customs and Border Protection (CBP) the ability to expel any individual encountered at the southern border that is not seeking to enter through an authorized entry point.
These restrictions will become effective after seven consecutive days of more than 2,500 encounters along the southern border, but does not impact those individuals seeking to claim for asylum at an authorized port of entry, such as a customs land access point or airport.
President Biden’s action highlights an often used, but commonly misunderstood and often asked question regarding the government’s workings: what is an executive action? In short, executive actions are mechanisms through which the President can attempt to institute policy changes that are controlled by the Executive branch without seeking the assistance of congressional approval.
EAs can be implemented quickly, but have specific limitations, as they cannot appropriate funds or create new law, which are solely under the purview of Congress. As with virtually everything in today’s age, EAs can be challenged in court and can be overturned by judicial action.
In 2014, the-President Obama attempted to pass a Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), which was fashioned upon the successful DACA program that helped approximately 11 million undocumented individuals brought to the United States as children obtain work permits. After being challenged by Republican governors and Attorneys General nationwide, the DAPA program was indefinitely put on hold until the program was rescinded under the Trump Administration.
The legacy of DAPA underscores the main weakness of EAs – they are not law. They can be revoked or modified under subsequent presidential administrations and are not considered permanent. Once enacted, they do absorb some protections from the courts, as revoking a benefit is often much more difficult than granting it in the first place, but Executive Actions are susceptible to immediate court intervention and scrutiny in a way that statutory law is not.
Conversely, statutes or laws are passed by Congress through an exhaustive legislative process. They must be passed by both the US House of Representatives and the Senate and then signed by the President. This laborious process, which includes markups through Congressional committees and negotiations between legislative houses give statutes a heft that are absent from the quick and nimble EA process.
Statutes undergo debate and voting and are subject to the scrutiny of stakeholders and public hearings. Statutes appropriate government funding, can establish new agencies and can create enforceable standards, thus providing the executive branch with the will of the people through their duly elected representatives. Most importantly, laws remain in effect permanently and while they can be amended and repealed (and also challenged in the court system), the deliberative process that they undergo provides statutes with an insulation that EAs simply do not possess.
This juxtaposition will play itself out in the coming months, as the American Civil Liberties Union has already indicated that it will challenge Biden’s Executive Action in court. Critics on both sides of the isle have also criticized the effectiveness of Biden’s action – many have rightly pointed out that while the EA will lessen the number of incoming filings that need to be adjudicated by the nation’s current adjudications system, that same system is virtually beyond saving – applicants for asylum can commonly expect to wait between 5 – 10 years for their claim to be heard by a USCIS officer; those applicants that are denied are then forwarded to an immigration court system that has been buckling for years with millions of backlogged cases, which may mean another number of years before their cases are adjudicated.
Biden’s efforts do little to address this backlog or help to staff up a woefully under-resourced system. Critics additionally point to Biden’s inaction on the southern border for nearly three years and argue that he is only now pushing enforcement policies for political purposes.
As has been argued in this column for years, the President’s shortcomings in this area are hardly of his own making. Quite contrarily, Congressional inaction and cowardice has led to current sorry state of affairs – too many members of Congress have a vested interest in keeping immigration as a political wedge issue, to be argued over on cable news networks and through social media, instead of addressing it as the policy, humanitarian and economic issue it truly is.
As such, the American public will be left with the imperfect and temporary offerings of each presidential administration, trying to bandage the problem for a short time longer. Sadly, the current immigration system seems to be held together by the policy-equivalent of popsicle sticks and duct tape, which makes the current system of disorder utterly predictable. Therefore, while we may want to criticize each presidential administration, Democratic or Republican, for its specific immigration shortcomings, we should collectively consider that many of the problems that we are hoping to be addressed at 1600 Pennsylvania Avenue would probably be better heard 2 ½ miles away on Capitol Hill.
Rishi P. Oza is Partner at Brown Immigration Law, a firm that focuses solely on immigration law; he practices in Durham. roza@rbrownllc.com
