On November 20, 2014, President Obama announced his intent to defer removal of certain undocumented immigrants. Minutes before the address, Senate Minority Leader Mitch McConnell (R-Kentucky) spoke from the Senate floor in opposition to the President’s plan. The public has responded with unabating confusion about deferred action. This isn’t surprising, given that (though immigration is a popular issue for debate) immigration law isn’t taught in American schools and universities. Even most law schools pump out our future legislators and judges without a requisite course in immigration law. Senator McConnell’s commentary shows just how confounding our immigration laws can be since even he, our soon-to-be Senate Majority Leader, doesn’t understand deferred action.

1. Only the Executive has Authority to Defer Removal

Senator McConnell began with a quote from the April 29, 2011 Commencement Address at Miami Dade College where President Obama said “democracy is hard…. changing our laws means doing the hard work of changing minds and changing votes one by one…. I know that some wish that I could just bypass Congress and change the law myself, but that’s not how democracy works.” The Senator relied on the reference as evidence the President is overstepping his values, his word, and the authority vested in the executive branch. If President Obama wanted to unilaterally change our immigration code, Senator McConnell would be right. But the plan to expand deferred action does not reflect an attempt to change the law. Rather, it is an exercise of the authority vested in the executive branch since the late 1800’s. (The following explanation is about a page long, but if you can stay tuned you’ll have a firm grasp on the basics of deferred action.)

While the Constitution grants Congress the authority to regulate commerce with foreign nations and establish a uniform rule of naturalization, it is silent on which branch should regulate the immigration of foreign persons.[1] The Supreme Court has wrestled with this lack of enumeration since the end of the 19^th century. Until then, immigration matters had been left to the States without incident. But when the first major wave of immigration began, the Court had to decide whether the Federal government had any authority to regulate the incoming flow of immigrants. It wasn’t until the Head Money Cases in 1884 that the Court first considered whether and held that Congress indeed had the power to regulate immigration.[2] The Head Money ruling paved the way for Congress to draft our modern immigration code, the Immigration and Nationality Act (INA).

Immigration law is now almost entirely federal in nature, and Congress has near plenary power to regulate immigration. What Congress does not have is the power to enforce its immigration laws. Through the INA, Congress vested a majority of the enforcement responsibilities in the executive branch. A number of executive agencies have administered the INA over the years, but the best known of these was the Immigration and Naturalization Service (INS). The INS no longer exists, as it was disbanded during the massive post-9/11 restructuring of all federal agencies related to national security. Via the Homeland Security Act of 2002 (HSA), Congress brought those agencies under the umbrella of the newly created Department of Homeland Security (DHS). Since then, DHS has used three agencies to enforce our immigration laws: the Bureau of Immigration and Customs Enforcement (ICE), the Bureau of Customs and Border Patrol (CBP), and U.S. Citizenship and Immigration Services (USCIS). Here’s a (very simplified) account of their respective roles: USCIS is responsible for processing petitions for visas, asylum, and naturalization. CBP is tasked with securing our borders and enforcing trade regulations; it’s the largest law enforcement agency in the country. ICE is DHS’ prosecutorial arm, responsible for investigating and trying violations of our national security and immigration laws.

Where an alien is alleged to have violated an immigration law, be it through accrual of unlawful presence or commission of a crime, he may be prosecuted through removal (“deportation”) proceedings. Removal proceedings are administrative proceedings through which an Immigration Judge determines whether an alien has violated the INA, and whether he or she should be removed (“deported”) as a consequence. Naturally, the attorneys who prosecute aliens in removal proceedings are representatives of ICE. However, you may be surprised by the fact that our Immigration Judges, Board of Immigration Appeals, and Executive Office for Immigration Review[3] are also part of the executive (not the judicial) branch. By now, the depth of executive authority in the realm of immigration should be evident. Let’s turn to how that authority can be lent to deferred action.

Just as an arrest will not always lead to the filing of charges against an arrestee, an alleged immigration violation will not always lead to an alien’s being placed in removal proceedings. An ICE attorney might decide that mitigating circumstances justify administrative closure of the proceedings against a particular alien. Such a decision is an isolated exercise of the prosecutorial discretion vested in ICE attorneys. Deferred action uses the same authority to cast a wider net and impact a certain class of persons as a whole. The Attorney General instructs the ICE agents and attorneys under his wing to decline to prosecute individuals that meet specified criteria. In other words, deferred action is a decision that the government will not seek to remove a certain class of aliens.

Deferred action is not, as Senator McConnell suggests, a change to our immigration law. It does not grant specified aliens the privileges of residency or rights of citizenship. It does not grant access to Medicare, Medicaid, Affordable Healthcare, Federal student aid, or the right to travel freely outside of the U.S.. Rather, it is an acknowledgement that aliens who conform with a set of specified criterion will not be targeted for removal. It is an incentive for undocumented aliens to make themselves known and fully contribute to our society. It is an exercise of the executive power consistently recognized, strengthened, and expanded by Congress, and upheld by the Supreme Court. Just like Presidents Clinton, G.W. Bush, G.H.W. Bush, Reagan, and Roosevelt,[4] President Obama is clearly within the confines of his authority when he allocates limited prosecutorial resources to the removal of aliens who pose the greatest risk to our security.

2. Deferred Action Does Not Create an Incentive for Unlawful Immigration

Senator McConnell says that deferred action will encourage immigrants to enter without inspection, and says “[w]e’ve already seen the consequences of Deferred Action for Childhood Arrivals…. It was a factor in encouraging young people to risk their lives on a perilous journey some would never complete.”

We’ll never know for sure how many undocumented immigrants are living in the U.S.. (If the government had the resources to monitor visa overstays and unlawful entries that closely, we probably wouldn’t be debating deferred action.) We do, however, have estimates of the number of undocumented immigrants living in this country. In 2014, even after a wave of child immigrants entered without inspection to escape growing violence in Central America, illegal immigration was at a 40 year low. It would seem that the consequences of Deferred Action for Childhood Arrivals (DACA) are not as the Senator suggests.

This is unsurprising, since President Obama’s DACA program is available only to immigrants who have continually resided in the U.S. since June of 2007. A similar length-of-residence requirement will apply to President Obama’s expansion of deferred action, which will only be available to those who have lived in the U.S. for 5 years (or 3 years, in the case of those who are parents of a lawful permanent resident or U.S. citizen). In other words, there is no incentive for those living abroad to “flood the gates”, as they will be ineligible for deferred action.

3. Deferred Action Does Not Allow Undocumented Immigrants to Cut in Line

Senator McConnell asks: “[w]hat does the President have to say to the countless aspiring immigrants who’ve spent years waiting patiently in line? To the people who’ve played by all the rules?” I suspect the President would tell them their patience will be rewarded when they, unlike those who stand to benefit from deferred action, become lawful permanent residents. Immigrants who wait in line will receive all the privileges of residency that deferred action beneficiaries cannot, such as freedom of travel, access to Affordable Healthcare and Federal student aid, and a path to citizenship. If Senator McConnell is truly concerned about the lengthy wait for these privileges, he shouldn’t be grumbling about deferred action. Instead, he should be rallying his fellow legislators to expand access to immigrant visas (“green cards”).

When an alien applies for an immigrant visa, he will usually face a lengthy wait before that visa becomes available. This is because USCIS receives far more applications than there are visas available each year (demand exceeds supply). Congress sets a limit on the quantity of immigrant visas which may be issued in a calendar year. (For example, in 2014, USCIS was authorized to approve a minimum limit of 226,000 family-sponsored visas.) The day an alien files an application for a visa is known as his “priority date”. A priority date helps keep track of where an alien stands in the line for a visa. (You might compare this priority date to the number on a ticket at a deli line. When your ticket number is called, it’s time for you to step up to the proverbial counter.) Each month USCIS publishes a Visa Bulletin announcing the priority dates of the applications which are ready to receive service. A quick glace at the Visa Bulletin will show you just how long many immigrants have to wait for a visa. The July 2014 Visa Bulletin reflects service on applications with priority dates as far back as May of 1991. If Senator McConnell is genuinely worried about the people waiting in line, he should focus his concern on the unrealistic numerical limits on immigrant visas.

4. Deferred Action Does Not Exacerbate Unemployment, but Probably DOES Create Jobs

Senator McConnell asks “[w]hat does the President have to say to the millions of Americans who still can’t find work in this economy? The President can’t reach across the aisle to secure a serious jobs plan for them, but he’s willing to put everything he’s got into this one executive action?”

There are two overt inaccuracies here. First, Senator McConnell overlooks President Obama’s record on unemployment.[5] The Senator’s comments come during the 56th straight month of private sector growth; Obama’s administration has over-performed President Reagan’s when it comes to job creation. Second, Senator McConnell suggests the President is using a great deal of his finite resources on a single executive action. Obviously, resources will be used to implement the expansion of deferred action. But to claim the President is putting “everything he’s got” into this plan is to exaggerate to the point of absurdity.

Most important, however, is a third, covert inaccuracy. Senator McConnell’s mention of unemployment is classic dog-whistle politics, a coded message that immigrants “steal” jobs from Americans. Senator McConnell, if you’re going to say something, come out and say it. Also, you might try basing your criticism on something that’s true. A great number of studies undercut the Senator’s implicit message, and find no statistical relationship between unemployment rates and the presence of substantial immigrant populations (undocumented or otherwise). Deferred action would allow immigrants to work lawfully; the ability to work lawfully means undocumented laborers need not accept menial wages that undercut American workers. Lawful employment also means more taxable income for the state and federal governments. Finally, it means job creation, since immigrants are twice as likely as natives to start new businesses.

5. Deferred Action is Necessary Because Congress Refuses to Act

Senator McConnell says: “The American people sent a message. They said they want to see us working together. They said they want to see more serious ideas pass through Congress. What they didn’t say they wanted to see was the President sidestepping the very representatives they just elected.”

It’s not possible for President Obama to “sidestep” representatives (that aren’t in office yet) by acting within the scope of authority designated to the executive branch. But here’s the real problem with this indictment of deferred action: the only reason President Obama has to act alone is because Congress is unwilling to unable or unwilling to work together on immigration reform. Congress hasn’t made significant changes to our immigration code since the 1980’s.

Congress can’t even come to a consensus on one of the least controversial of our immigration problems- the presence of undocumented immigrants brought to the U.S. as children. This is not to say that a few of our Congress members haven’t tried, as the DREAM Act (Development, Relief, and Education for Alien Minors Act), a bipartisan bill, has been a topic of congressional debate for fifteen years. The DREAM Act was first introduced in the Senate in 2001. (Notably, one of the bill’s co-sponsors was Orrin Grant Hatch, R-Utah, the Senate’s longest-serving Republican.) The bill would provide a path to permanent residency for undocumented immigrants that (1) arrived in the U.S. before turning sixteen, (2) graduate from a U.S. high school, (3) lived in the U.S. during the five years preceding the bill’s enactment, and (4) can demonstrate good moral character. A six year grant of conditional residency would be contingent upon two years of study at a College or University. Those that ultimately obtain a degree or serve at least two years in the armed services would be eligible for permanent residency. The DREAM Act has been voted down, filibustered, or left to die on the Senate floor in 2002, 2003, 2004, 2005, 2006, 2007, 2008, 2009, 2010, and 2011.[6]

This, despite the fact the DREAM Act has received bipartisan support from stake-holders in every facet of education, business, and government. A few notable messages of support came from: the National Education Association; the National Parent Teacher Association; the American Federation of Teachers; Microsoft; Macy’s Chairman, President, and CEO, Terry Lundgren; Chairman and CEO of New Corporation, Rupert Murdock; General Colin Powell; Secretary of the U.S. Department of Defense Robert Gates; and Secretary of the Department of Homeland Security, Janet Napolitano. Perhaps even more compelling than this impressive showing is the irrefutable support the DREAM Act has received from the people.

While Congress delayed and denied, fifteen states passed their own versions of the DREAM Act. Thanks to Texas, California, Illinois, Utah, Nebraska, Kansas, New Mexico, New Jersey, New York, Washington, Wisconsin, Massachusetts, Maryland, Minnesota, and Oregon, 46.91% of the population lives in a state covered by DREAM legislation. Or, to speak Senator McConnell’s language, 238 electoral college votes (just 33 votes shy of the number needed to clinch the 2000 Presidential election) reside with states that support the DREAM Act. Senator McConnell, the people have sent a message. You’re simply choosing to ignore it.

[1] See U.S. Const., art. I § 8.

[2] Head Money Cases, 112 U.S. 580 (1884),

[3] The Attorney General’s authority over the EOIR, previously memorialized in centuries of administrative laws, was codified by Congress in the HSA.

[4] You can read more about prior uses of executive action on immigration here: http://www.msnbc.com/rachel-maddow-show/unprecedented-except-all-the-other-times

[5] You can read more about President Obama’s successes in encouraging private sector growth here: http://www.forbes.com/sites/adamhartung/2014/09/05/obama-outperforms-reagan-on-jobs-growth-and-investing/

[6] In 2012, in response to years of delays, President Obama extended DACA to the immigrants contemplated by the DREAM Act. The bill remains a topic of debate, however, since DACA beneficiaries have no path to residency without it.