Immigration and the Obama Administration

The Obama Administration’s Immigration Policy

The Trump Administration’s immigration policies have been so devastating for immigrants, it is easy to idealize the past Obama Administration’s attitudes towards legal and illegal immigrants. In both rhetoric and policy, the Obama Administration attempted more positive and welcoming attitudes to immigrants compared with President Trump. However, it is important to contextualize Obama’s executive outreach in a wider frame of history and not to excessively idealize them, according to legal scholars.

President Obama has had both his detractors and his supporters regarding immigration policy. According to one critic, Kristina Campbell (2010), professor at the University of the District of Columbia David A Clarke School of Law, although policies toward immigration throughout the 21st century as a whole have been highly problematic for immigrants, the Obama Administration’s actions still leave much to be desired, in terms of how immigrants were actively detained at the border and a lack of meaningful legislation to protect immigrants and the children of immigrants. But according to Professor Michael Kagan (2016) of University of Nevada, Las Vegas—William S. Boyd School of Law, the Obama Administration’s record is not as problematic as it might seem to be, but rather the result of political and bureaucratic forces and wrangling for power and control.

Specifically, Kagan (2016) argues that by using a mixture of executive actions and prosecutorial decisions, Obama’s “aim has been to focus enforcement against immigrants caught at the border or with criminal records while easing the path toward integration for others” (p.665). Critics have alleged this creates a divide between so-called good and bad immigrants in a manner which is not helpful, while Obama’s supporters argue that he is the first president in recent memory to take aggressive action to protect the rights of at least some immigrants who came to the country illegally yet who have made a meaningful contribution to America.

Part of the difference in these views of different law professors in the field of immigration law may lie in the degree to which they view the federal government as powerful in influencing immigration policy. Campbell (2010) argues that the federal government has a unique role in setting immigration policy for the nation. Despite the fact that the US Constitution does not explicitly discuss immigration in its wording, other than to establish rules for nationalization, federal courts have established a so-called plenary power to regulate immigration on the part of federal officials (Campbell, 2010). Thus, Campbell (2010) suggests that a failure to act compassionately towards immigrants lies squarely in federal hands.

Kagan (2016) suggests that the bureaucratic and political reality is far more complicated than this summary. Firstly, President Obama, a child of an immigrant himself, was vocal in advocating for the expansion of DACA (Deferred Action for Childhood Arrivals) and DAPA (Deferred Action for Parental Accountability). These actions were promoted by the Obama Administration as stopgap measures in and of themselves as a result of Congressional inaction regarding the DREAM Act (Development, Relief, and Education for Alien Minors), which offers more sweeping amnesty for children who were brought to the country by their parents while minors and lack the technical qualifications for citizenship. DACA was “built on the pre-existing legal mechanisms of deferred action, by which beneficiaries of prosecutorial discretion have been formally told that the government had decided not to deport them” (Kagan, 2016, p. 681).

Not only would passing such executive actions have been an important first step in assisting the unintentional victims of immigration policy, as many children were unable to act in regards to or unaware of the ramifications of parental actions (crossing the border or concealing immigration status) but also ensure a more consistent response to immigration, versus simply allowing such decisions to remain in the hands of prosecutors or other officials to act in an arbitrary fashion.

Kagan (2016) also believes that President Obama’s first significant immigration policy change from the Bush Administration was in regards to transparency. The Morton Memos, named for the director of ICE (Immigration and Customs Enforcement), brought forth the policies governing immigration decisions that had previously been opaque, including how past criminal records, the existence of children in the country, and the likelihood of asylum were examples of factors taken into consideration when making immigration decisions (Kagan, 2016). No single fact was particularly controversial in the publicly released memos. What was debatable, was the degree to which one factor would be prioritized over other factors was almost entirely arbitrary. “Because the Morton Memos did not prescribe how to make these decisions, they left much in the hands of frontline ICE officers to decide how to evaluate individual cases” (Kagan, 2016, p.678).

The release of the memos highlighted a significant problem related to justice and jurisdiction on the federal level. The lack of clarity regarding decision-making meant that individual officials, rather than actual federal authority, were guiding everyday decision-making. Justice arbitrarily applied is, in effect, justice denied. Kagan (2016) adds resistance was almost immediate to Obama’s reform initiatives within ICE because of a perceived loss in bureaucratic power regarding making such individualized decisions, regardless of the positive or negative effects upon families coming to the US or already within its borders.

ICE official opposition further played into conservative opposition to the Obama Administration as a whole. In 2016, 26 states obtained an injunction against DACA on procedural grounds that Obama’s actions were a usurpation of congressional power and an act of overstepping executive authority (Kagan, 2016). Campbell (2010) also adds that the previous failures of Congress to pass comprehensive immigration reform are one of the most frequently cited reasons for states being able to take up the breach in policy and pass more restrictive measures. Both administration critics and advocates noted how certain states have been the most vocal opponents of immigration reform, and conservative governors ironically found themselves in the position of supporting unelected federal bureaucrats in the form of ICE officials as a way of curtailing even more hated federal authority under the auspices of a liberal president.

The reasons for state opposition to immigrant reform are numerous. First, many politicians have made such opposition a foundation of their election campaigns, given the lack of popularity of immigration among certain segments of the population. Immigrants, both legal and illegal, are often framed as threatening to jobs. In the past, immigration reform has proven unpopular in both the House and Senate (Campbell, 2010). This, in and of itself, has been an argument for the types of sweeping executive actions attempted by the Obama Administration. Arguably, only a president capitalizing upon the value of a so-called bully pulpit, particularly in the second administration tenure when reelection is no longer a factor.