Hillary Clinton on Expanding Executive Action on Immigration “if Congress refuses to act”

May 6th, 2015

During an immigration reform roundtable, presidential hopeful Hillary Clinton offered these remarks on how she would expand executive action on immigration:

And, if Congress refuses to act, as President I will do everything possible under the law to go even further. There are more people—like many parents of DREAMers and others with deep ties and contributions to our communities—who deserve a chance to stay. I’ll fight for them too.

The law currently allows for sympathetic cases to be reviewed, but right now most of these cases have no way to get a real hearing. Therefore we should put in place a simple, straightforward, and accessible way for parents of DREAMers and others with a history of service and contribution to their communities to make their case and be eligible for the same deferred action as their children.

But that’s just the beginning. There’s much more to do to expand and enhance protections for families and communities. To reform immigration enforcement and detention practices so they’re more humane, more targeted, and more effective. And to keep building the pressure and support for comprehensive reform.

The import of her remarks are very clear. She is suggesting that deferred action be expanded to the parents of the DREAMers–even though this is something the Office of Legal Counsel specifically said could not be done.

Esther Yu-Hsi Lee at ThinkProgress read it the exact same way I did:

Clinton drew particular attention to a group of undocumented immigrants for whom she would take presidential action if Congress didn’t pass comprehensive immigration reform that includes deportation relief. She said that she would “do everything possible under the law to go even further” for “many parents of DREAMers and others with deep ties and contributions to our communities – who deserve a chance to stay. I’ll fight for them too.”

When Obama proposed expanding executive action to about five million undocumented immigrants in November 2014, he left out the parents of DREAMers because the Justice Department’s Office of Legal Counsel (OLC) believed that extending relief to these immigrants would not be legal. A senior Obama administration official told ThinkProgress at the time that the president decided not to act on behalf of the parents of DREAMers because “it was something we consulted with the Department of Justice very closely and we ultimately concluded we couldn’t do it.” Nevertheless, there are strong legal arguments supporting the view that the Obama administration as too timid, and that extending relief to the parents of DREAMers would fit within the “broad discretion” the Supreme Court says that the executive branch enjoys on matters related to immigration and deportation.

Indeed, the 100+ immigration law professors who signed a letter supporting the President’s executive action insisted that the President could grant deferred action to the parents of dreamers. This was a bridge too far even for OLC.

Offering a different take on Clinton’s remarks is Greg Sargent at the Plum Line. He writes:

That sounds like a call for expanding DAPA to cover the parents of DREAMers, but it actually isn’t quite that. The distinction turns on the meaning of “deferred action” status. That status has been around for decades, and is awarded on a case-by-case basis to some who apply for it. It includes work permits. But this status exists independently of DACA and DAPA, which are essentially something approaching categorical grants of that status to particular classes of people. (They are not quite categorical grants, but that’s too deep in the weeds for our purposes.) In other words, plenty of people who are not covered by DACA and DAPA can still apply for deferred action status, be considered for it, and receive it.

Clinton didn’t definitively say that as president she would award what amounts to a quasi-categorical grant of deferred action status to parents of DREAMers. Rather, she said she would seek to improve the process by which parents of DREAMers can apply for existing deferred action status, which (as mentioned above) they can already do.

With respect, this is an unrealistically charitable reading of Clinton’s remarks. She said the “parents of DREAMers” would be “eligible for the same deferred action as their children.” How are the children given deferred action? Well, if you ask President Obama, under DACA each alien has to “make their case” for why it should be granted. It’s not a categorical grant! Of course, this requires a massive suspension of disbelief. DACA and DAPA are broad, categorical grant of relief that do not turn on any meaningful individualized assessments.

Sargent quotes an immigration lawyer who tries to explain what Clinton really meant:

“All of us walked away from this thinking she is going to expand DACA and DAPA, but it’s not clear she would do that,” prominent immigration attorney David Leopold, who favors such an expansion, told me. “She didn’t explicitly call for expanding Obama’s current executive actions. She didn’t say, ‘I’m going to expand DAPA to the parents of DREAMers.’ What she did say is there should be a simple process in place by which people who have been here a long time can apply for deferred action. But that wouldn’t mean a categorical grant.”

I don’t know if Leopold realizes, but he basically admitted that DACA *was* a categorical grant, by explaining that deferred action for parents of DREAMers would be different, and individualized. Alas, this is unlikely. The very fact that the program is targeted at the parents means it will be categorical in the same exact sense that DACA was. What would this “simple process be”? Presumably through the exact same manner as DACA beneficiaries. If this relief was in fact being given on a case-by-case basis, why even mention the “parents” as a category? Why not say each case will be judged individually, without respect to any category.

Clinton was speaking to the huge group of parents of DREAMers who were disappointed by the limited reach of DAPA. Who knows if her legal time actually read the OLC Opinion, or was merely reacting to the disappointment ThinkProgress highlighted.

Also, the most important portion of Clinton’s remarks was not that she would expand DACA. It’s that she would take executive action “Congress refuses to act.” This would, tragically, continue President Obama’s flagrant disregard for the rule of law.