How Executive Action Can Build a More Fair, Humane, and Workable Immigration System
Over the past four years, the Trump administration wreaked havoc on the nation’s immigration and humanitarian protection systems, all without enacting a single law—and often in violation of existing laws. Building on a set of laws that were already outdated, overly inflexible, and poorly suited to meet the country’s realistic wants and needs, the administration made full use of the significant amount of executive authority that Congress has both explicitly and implicitly delegated to the president over many decades. As many commentators observed when looking at the administration’s relentless anti-immigrant agenda, cruelty was often the point. Now, the incoming Biden administration—which recognized early on that “we are living through a battle for the soul of this nation” and centered its presidential campaign around a pledge to “restore the soul of America”—will need to similarly use executive authority to repair much of the damage done over the past four years, as well as in previous years. By doing so, it can help build an immigration system that is more fair, humane, and workable.
Given the substantial task at hand and the nature of both the administrative state and administrative law, some of this will take time. But because the stakes are so great for so many—indeed, for the country as a whole and for its future—the work must begin immediately and it must be sustained for the duration of the administration. By the end of his first week in office, President Donald Trump had already issued three separate executive orders pertaining to immigration.
During his first days in office, President-elect Joe Biden should issue a single omnibus executive order that 1) lays out a condemnation of the damaged system that he is inheriting, 2) articulates a vision for the direction in which he will take things over the course of his term in office, and 3) makes initial, urgently needed changes consistent with that vision, including the imposition of a 100-day moratorium on deportations while the administration conducts a comprehensive review of outstanding cases and develops a set of sensible enforcement priorities.
What the first executive order on immigration should include
The executive order should begin with a high-level description of the breadth of damage done by the Trump administration, including but not limited to:
- The termination of protections for hundreds of thousands of Deferred Action for Childhood Arrivals (DACA) recipients and Temporary Protected Status (TPS) beneficiaries
- The systematic and intentional separation of thousands of children from their parents at the U.S.-Mexico border
- The wanton cruelty caused by an immigration enforcement policy that puts everyone in its crosshairs
- Expansive entry bans for immigrants, nonimmigrants, refugees, and asylum-seekers, with a targeted focus on people from Muslim-majority countries and countries in Africa
- The decimation of the U.S. Refugee Admissions Program, which has been a strength at home and abroad
- The enhanced politicization of the immigration court system and Board of Immigration Appeals
- The creation of a “wealth test” that has scared immigrant families away from seeking necessary medical care, even in the midst of a pandemic
- The transformation of U.S. Citizenship and Immigration Services from an agency that fairly adjudicated applications into one that arbitrarily denies them
Providing a concise but comprehensive condemnation of the damage done by the Trump administration is necessary to convey to the public and to both political appointees and career staff that the Biden administration recognizes the challenge at hand and will waste no time in beginning to build immigration and humanitarian protection systems that are far better than what exists today.
The executive order should then address issues by category, articulating generally what values and objectives should guide the development of policy in each area. Where possible, it should immediately rescind executive orders and policies that run counter to those values and objectives—for example, various entry bans issued pursuant to section 212(f) of the Immigration and Nationality Act, the nationwide expansion of expedited removal, and the so-called asylum cooperative agreements with Guatemala, Honduras, and El Salvador. The order should also task Cabinet secretaries with the responsibility of studying different aspects of the issues within their jurisdiction and reporting back in fixed periods of time with new plans and policies consistent with the administration’s vision.
For example, the secretary of homeland security should be tasked with establishing new civil immigration enforcement guidelines; developing a range of community-based supervision programs to significantly decrease the country’s overreliance on a punitive detention system; conducting an immediate audit of the current detention population to release those at heightened risk of developing serious health consequences if they were to contract the coronavirus, as well as vulnerable populations and others for whom detention is not strictly necessary; establishing a protocol to promote cooperative enforcement strategies designed to enhance compliance with U.S. immigration laws; and reviewing extant agreements with state and local law enforcement agencies, including all forms of 287(g) agreements, to begin the process of phasing them out entirely.
Similarly, the attorney general should be directed to take steps to significantly reduce the immigration court backlog by removing low-priority cases from the docket and to review immigration decisions issued by prior attorneys general and the Board of Immigration Appeals to identify cases ripe for certification and prompt reissuance to correct inconsistencies with law. In addition, the secretaries of state and health and human services should be ordered to engage stakeholders and review policies and procedures to ensure that a rebuilt U.S. Refugee Admissions Program is more resilient. The secretaries of homeland security and state, meanwhile, should develop a plan to restore an orderly and efficient asylum system that lives up to our highest ideals, including by dismantling the “Remain in Mexico” program.
While this bureaucratic process takes place and the administration studies each of these issues and designs appropriate solutions or harm-mitigation plans, it should issue a moratorium on deportations and associated detentions and arrests for a 100-day period, ensuring that enforcement actions going forward follow sensible enforcement priorities and are aligned with the new administration’s vision and values and not those of its predecessor.
Congressional engagement and steady policy rollouts in furtherance of the administration’s vision
During this time, the administration should work closely with the new Congress to use all necessary legislative tools to enact legislation without delay. This should include permanent protections for Dreamers and TPS holders—such as those covered by the American Dream and Promise Act, H.R. 6, which passed the House in 2019 with bipartisan support—as well as undocumented farm workers, who would have received protection under the Farm Workforce Modernization Act, H.R. 5038, which also passed the House in 2019 with even greater bipartisan support. Both of these bills ultimately died in the Senate under Sen. Mitch McConnell’s (R-KY) leadership, but they should be high priorities for the new-look 117th Congress. In addition, as the Biden administration and Congress work to enact a long overdue national coronavirus relief and recovery package that rises to the significant challenges facing the country today, they should ensure that undocumented essential workers and their families—who continue to play an important role in the nation’s fight against the coronavirus pandemic and will play a similarly critical role in the country’s efforts to rebuild—are placed on a path to citizenship.
Of course, necessary policy changes should be announced when they are ready. For instance, the administration should, without delay, begin the process of identifying and reuniting in the United States parents and children separated under the Trump administration’s family separation policy. Additionally, as part of a broader strategy of constructive reengagement with Central America, the secretary of homeland security should issue new TPS designations for El Salvador, Guatemala, Honduras, and Nicaragua on account of the two unprecedented hurricanes that devastated those countries in November and exacerbated their ongoing public health and food insecurity crises.
At the conclusion of this 100-day period, the administration should be prepared to issue new policies governing future civil immigration enforcement practices. At this time, in the event that Congress does not act, the administration should also take strong executive action consistent with its ample authority under law—for instance, by granting “significant public benefit” parole in place to individuals who perform work that Trump’s Department of Homeland Security deemed essential to the critical infrastructure of the country as well as to their spouses and minor children.
The executive actions described above—and even the tailored legalization bills—would not eliminate the need for the significant legislative reforms required to create an immigration system that is more fair, humane, and workable and that restores faith in the rule of law. Core features of such a system would include a generous and well-functioning legal immigration system responsive to the nation’s changing needs; an asylum and refugee system that guarantees humane and efficient processing without sacrificing fairness; a new paradigm for enforcement committed to proportionality, accountability, and due process; and a path to citizenship for undocumented immigrants and others who have long resided in this country. There must also be legal mechanisms, such as a rolling registry date, designed to prevent a recurrence of the current problem.
Collectively, these structural reforms will create an immigration system that lives up to the country’s best values, meets its realistic wants and needs, and is both capable of being followed and deserving of being enforced in a fair and just way. But the fact that legislative reforms are undeniably needed does not obviate the need or the justification for steady and aggressive use of executive authority permitted under law. In fact, the decades of legislative paralysis—and the national nightmare from which we will soon emerge—ultimately demand it.
Tom Jawetz is the vice president for Immigration Policy at the Center for American Progress.
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Vice President, Immigration Policy