Monday, November 7, 2016


On Tuesday US voters will go to the polls to elect 435 House of Reprehensive members, 34 Senators, and of course, a new US President and Vice President.  The biennial election will set the stage for the next two years of federal legislation.  Pundits are calling it the most important election of our lifetime and are predicting massive changes in immigration law.

If Hilary Clinton is elected, she promises to make immigration a top priority.  She is calling for Comprehensive Immigration Reform including a pathway to legalization for millions of undocumented and illegal foreign nationals.  She expects to have legislation proposed within her first 100 days.

If Donald Trump is elected, he is calling for  a wall along the US-Mexican border and greatly increased regulation in all corners of immigration.  His changes to the law will begin immediately

It seems unlikely to MU Law that any of this happen immediately.  It also seems unlikely that any immigration changes will be incremental, not dramatic. 

Immigration laws are implemented in two basic ways: legislatively and administratively.  Legislative laws must pass both branches of Congress, the House and the Senate.  The betting markets have concluded that the most likely outcome for this week’s election is that Hillary Clinton will win the presidency, the Democratic Party will have a tiny majority in the Senate, and the House will remain in significant Republican control.  Betting markets have proven to be a more reliable predictor of electoral outcomes than polls or pundits. 

That outcome is a recipe for gridlock.  Even if Hillary Clinton wants to push for a massive legalization program, she will need to convince at least 50% of the House membership to go along with the plan.  It is unlikely that a Republican- controlled House will want any part of a Clinton-inspired immigration bill.  They will be much more likely to spend their time on more email investigations and Benghazi hearings.

A President-elect Clinton may be able to make some progress on administrative changes, which is also known as Executive Action.  Administrative changes are interpretations of law by the Department of Homeland Security.  The President ultimately sets all policy for administrative agencies such as DHS. 

President Obama had some success in this area, such as sanctioning the DACA rules, which allowed undocumented foreign nationals to obtain work authorization if they entered the US as children, provided that they had no other criminal record.  

Through the USCIS, President Obama announced some additional Executive Action in November 2014.  He has had mixed success in this area.  He was rebuked by the courts for overstepping his administrative authority when he sought to create DAPA, a program that would have extended DACA-like rights to undocumented parents of US citizens and permanent residents.  On the other hand, the USCIS has expanded work authorization for certain spouses of H-1B visa holders. 

Which leads to our prediction: Hillary Clinton will win the US Presidency but will not have success passing meaningful immigration legislation.  She may be able to make marginal changes to immigration policy through administrative decision-making, which will likely be less-dramatic and newsworthy.

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