In Limbo: The Future of President Obama’s Immigration Plan

(image by Jenna Ndjon

by Erin Gunderson, Staff Writer

On Monday, November 9, the United States Court of Appeals for the Fifth Circuit postponed a ruling on President Obama’s executive order immigration plan which he announced in November 2014.

What is Obama’s immigration plan, and why is it under scrutiny by the court? Though immigration is definitely a controversial issue in American politics, there is a disparity between the actual content of the bill and the legal questions that are holding up its implementation.

The Plan

The meat of Obama’s immigration plan is the deferral of deportation for undocumented immigrants who have children who are U.S. citizens, and for individuals who were brought to the United States illegally as children. In neither of these instances is citizenship offered, but rather these individuals will be able to apply for deferral of deportation and permission to work.

Other provisions of Obama’s plan include support for visas for investors and students looking to pursue degrees in science, technology, engineering, and math at United States universities, modification of how undocumented immigrants are taken into custody, and additional resources to enhance border security.

Overall, this plan will affect roughly four million undocumented immigrants currently in the country. However, in the United States today there an estimated 11 million undocumented immigrants, so those who will be able to apply for deportation deferral are less than half of the undocumented population.

The Response

As immigration is a partisan issue, after the announcement of this plan many conservatives voiced opposition. In addition to disagreeing with the content of the plan, many argued that Obama was overstepping his constitutional authority with the executive action. As the head of the executive branch his role is to execute and enforce laws, and some saw his executive order as a way of trying to write his own law. Because the constitutional role of Congress is to draft legislation, they saw his actions as out-of-bounds and unconstitutional.

In light of the executive order several Republican governors banded together to sue the White House, stating that the plan would require them to spend more on law enforcement, health care and drivers’ licenses for illegal residents. This is where the current legal proceedings really begin.

The Fifth Circuit Court of Appeals has identified three central questions about the immigration plan they must deliberate. The first is whether or not the states can actually sue the federal government. Second is whether or not the administration followed the right procedures when announcing the new program. And the third is whether or not the administration can carry out its plan while all of these questions are being deliberated. The answer to the third question was decided November 9 to be a “no,” which stalled implementation of the plan. Once the court reconvenes to decide the case, about a year from now, decisions will be made and if they are in favor of the administration only then will they be able to execute the plan.

Thus there is a disconnect between the actual provisions of the immigration plan, and why it is under legal scrutiny. When this issue resurfaces, roughly a year from now, it will be a topic candidates in the heat of the presidential election will have to address. In order to court voters, candidates will have to gauge the political popularity, or lack thereof, of this plan among those they hope will become their constituents.  The election climate may be a key factor in determining whether or not Obama’s immigration plan will ever find wings.

Erin Gunderson is a staff writer for the William & Mary Policy Review and an undergraduate at the College of William & Mary.

Editor’s Note: Comments may be moderated for content. 

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