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.
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.
