CHICAGO (JGL) – If President Obama fulfills his promise to issue an executive order on Friday (Nov. 21), there is no more need for Filipino Americans to press for Temporary Protective Status (TPS) that would have authorized tens of thousands of undocumented Filipinos in the United States to obtain work permit and stop their deportation following the devastation of super Typhoon Yolanda (Haiyan).
A TPS is also an executive order signed by a cabinet official, in this case, Secretary Jeh Johnson of the U.S. Department of Homeland Security.
Mr. Obama’s executive order will also possibly advance the priority date to “current” of hundreds of thousands of Filipinos waiting in line to obtain the limited Family Preference Immigrant Visas that has a backlog of wait of ten to 20 years for visa to become available.
But what happens if the 114th Congress will open its session on Jan. 3, 2015 with both chambers dominated by Republicans? Can the Republicans nullify, invalidate or undo Mr. Obama’s executive order?
It can. But both chambers would need to override President Obama’s veto by two-thirds vote from each house.
Let’s examine the numbers.
Although the Democrats lost nine Senate seats during the midterm elections early this month to reduce its total from majority of 53 to 44 to form a minority and the Republicans added eight seats from its minority of 45 to a majority of 53, the Republican majority would still need the votes of two Independents and one seat still being contested and perhaps 12 additional more votes from the Democrats to tally 67 votes to override Mr. Obama’s veto of the two-thirds vote.
In the case of the House of Representatives, where the Republicans added ten more seats to increase their numbers to 244 majority while the minority Democrats lost 15 more seats with five more seats still being contested, the Republicans would still need to muster 48 more additional votes for a total of 291 votes to override Mr. Obama’s veto.
If both chambers could not override Mr. Obama’s veto, the executive action will stand. But the Republicans can still go to court to undo Mr. Obama’s executive order if they cannot wait for the election in 2016 of the new president, who can renew or undo the order.
HOW WILL OBAMA FARE BEFORE SC?
And how will Mr. Obama fare before the U.S. Supreme Court?
Let’s take a look at the Youngstown Sheet & Tube v. Sawyer, a case that reached the U.S. Supreme Court on April of 1952, during the Korean War, when President Truman issued an executive order, directing Secretary of Commerce Charles Sawyer to seize and operate most of the nation’s steel mills. The order was issued to avert the expected effects of a strike by the United Steel workers of America.
Although, the Supreme Court rejected Truman’s seizure of the steel mills because it was incompatible with the expressed will of Congress in the form of the Taft-Hartley Act, in his concurring opinion, Justice Robert H. Jackson described three different situations and three corresponding levels of presidential authority:
The president acts with the most authority when he has the “express(ed) or implied” consent of Congress;
The president has uncertain authority in situations where Congress has not imposed its authority — either by inaction or indifference — and the president takes advantage of this “zone of twilight” to make an executive decision;
The president acts with the least authority when he issues an executive order that is “incompatible” with the expressed or implied will of Congress. Such an act, wrote Justice Jackson, threatens the “equilibrium established by our Constitutional system.”
I believe, although the House version of S 744, Border Security, Economic Opportunity, and Immigration Modernization Act never got past the House of Representatives, the Senate passed it last June 27, 2013 with an overwhelming vote of 68-32, one more vote of the two-thirds vote in the Senate. It, thus, gives Mr. Obama’s executive order “the most authority” with an “express(ed) or implied” consent of Congress if Mr. Obama adopts most, if not some of the contents of the S 744 in his executive order.
It will be a mistake to assume that Mr. Obama has an “uncertain authority” nor is he treading on the “zone of twilight” because the House of Representatives has shown its “inaction or indifference” when it failed to put its S 744 version to a vote either in a subcommittee, committee or the plenary session.
Nor could Mr. Obama be accused of exercising the “least authority” and be “incompatible” with the expressed or implied will of Congress because he was merely carrying out the will of the overwhelming vote of the Senate.
DOING A REAGAN
Mr. Obama’s order will just be following the lead of Republican President Ronald Reagan, who approved the Immigration Reform and Control Act (IRCA) of 1986 although the 99th Congress was a split Congress with Republicans having 53 majority and the Democrat with 47 minority members for a 100 total members in the Senate. While the Democrats enjoyed a 253 majority or 58.2% and the Republicans, 182 members or 41.8% for a total of 435 members.
The IRCA among others “amnestied” or legalized illegal immigrants, who entered the U. S. before Jan. 1, 1982 and had resided there continuously with the penalty of a fine, back taxes due, and admission of guilt; candidates were required to prove that they were not guilty of crimes, that they were in the country before Jan. 1, 1982, and that they possessed minimal knowledge of U.S. history, government, and the English language.
About four million illegal immigrants would apply for legal status through the act and that roughly half of them would be eligible.
According to the Washington, D.C.-based Migration Policy Institute (MPI), in the absence of legislative movement to reform the U.S. immigration system, the Obama administration is considering executive action to provide relief from deportation to some of the nation’s estimated 11.7 million unauthorized immigrants. These actions could include an expansion of the Deferred Action for Childhood Arrivals (DACA) program, extension of deferred action to new populations, or further refinement of enforcement priorities to shrink the pool of those subject to deportation.
POSSIBLE CRITERIA
Among the possible criteria for deferred action that MPI modeled are length of U.S. residence; close family ties to U.S. citizens, legal permanent residents, or DACA beneficiaries; and/or potential eligibility for a green card as the immediate relative of a U.S. citizen.
The modifications of current DACA criteria could expand the eligible population by a few tens of thousands or as many as 1.9 million. For example, eliminating the current education requirement while retaining all other criteria would expand the population by about 430,000.
Others who can be legalized are the following:
The three million unauthorized immigrants, who had lived in the United States for 15 or more years as of 2012, 5.7 million for at least ten years, and 8.5 million for at least five years.
The 3.8 million unauthorized immigrants, who were parents or spouses of U.S. citizens as of 2012.
The 1.3 million unauthorized immigrants in 2012, who had immediate-relative relationships with U.S. citizens who potentially qualify them for green cards, including 770,000 because of their marriage and 560,000 because they were parents of a U.S. citizen.
Limit the deportation of certain groups of unauthorized immigrants if they are apprehended by federal immigration authorities.
Narrowing the definition of “recent illegal entrants” to those apprehended within one year of entering the U.S. (currently the definition is three years) would have reduced removals by 232,000 during 2003-13.
Excluding noncitizens convicted exclusively of traffic offenses (other than DUI) would have resulted in 206,000 fewer removals over the period.
Excluding all non-violent crimes would have reduced removals by 433,000.
Foregoing deportation for those with outstanding deportation orders more than a decade old would have resulted in 203,000 fewer removals.
According to MPI’s Randy Capps and Marc R. Rosenblum, the reach of potential changes to expand the DACA program or refine immigration enforcement priorities would be even greater if multiple changes were to be implemented at the same time. Stay tuned! (lariosa_jos@sbcglobal.net)