Congress Has Abandoned Policy-Making Responsibility for Immigration. So Who’s Making Policy?

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Updated April 8.

With Congress abandoning its policy-making responsibility for immigration, policy-making initiative now rests with the executive, the states, localities, and the courts.

While Washington has been preoccupied with a fight over the president’s Executive Actions on Immigration, there is more activity on the immigration front than the president’s decrees. That activity is happening in 50 states, and in many more communities.

On March 29, Julia Preston of The New York Times wrote a nice summary of how immigration policy in this country diverges greatly among the states. She contrasts the lives of two undocumented women—one in Washington, which has enacted policies that are welcoming to immigrants, including one allowing undocumented immigrants to obtain drivers licenses, and one in Texas, which has brought a lawsuit against the president to stop his immigration executive actions.

In general, states are divided by where immigrants live. States with significant immigrant populations, including significant populations of undocumented immigrants, tend to be more welcoming. The integration of undocumented immigrants is important to them. It is good for their economies. States with smaller immigrant populations tend to be less welcoming, and it is these states that have joined the Texas lawsuit against the president’s welcoming policies.

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Action/Reaction: Public Support, Republican Opposition to Executive Action

The least productive Congress in modern history will leave Washington this week for the holidays. After running the clock out on this Congress without action on immigration reform, Republicans have been predictably furious at President Obama for taking action to mitigate the hardships caused by their lack of action.

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Washington Kicks the Can Down the Road; States Take the Lead

President’s Decision to Delay Executive Action Creates Electoral Challenges

In early September, the President announced he would delay any executive action that would mitigate the failure of Congress to enact immigration reform, providing relief for families being split apart by deportation. The rationale given by the President was that the Central American child refugee crisis has affected the timeline for an announcement on executive action. Mr. Obama told NBC on September 6,

“I want to spend some time, even as we’re getting all our ducks in a row for the executive action… (and) make sure that the public understands why we’re doing this, why it’s the right thing for the American people, why it’s the right thing for the American economy,” Mr. Obama said.

Democratic Senators Urge Obama to Hold Off

Leading up to the decision to spend more time making sure the American people understand why executive action is needed, several Democratic incumbent senators and senatorial candidates in Republican-leaning states—among them Kay Hagan of North Carolina, Mark Pryor of Arkansas, Mark Begich of Alaska, Michelle Nunn of Georgia and Alison Lundergan Grimes of Kentucky—had been urging the president to hold off on taking action. They feared such a move would harm their electoral chances. In those states, the Latino electorate is small. The only state where there is a competitive Senate race this year and a significant pool of Latino voters is Colorado. Democratic senators Bill Nelson of Florida, Al Franken of Minnesota, and Independent Angus King of Maine (who caucuses with Democrats) also expressed concerns.

Complicating matters is a turn in public opinion on immigration since the Central American refugee crisis began, with an uptick in the percentage of Americans favoring a focus on border security.

So, regardless of the American people’s understanding of the need for executive action, the political calculation weighed against action prior to the election.

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As Hope for Reform Fades, Administrative Action Becomes More Likely

On June 30, President Obama made remarks in which he criticized the failure of House Republicans to “stand up to the Tea Party in order to do what’s best for the country” and pass an immigration reform bill. He said that he would begin a new effort “to fix as much of the immigration system as I can on my own, without Congress.” He directed DHS Secretary Jeh Johnson and Attorney General Eric Holder to move resources to the border, and to make additional recommendations by the end of the summer, after which he will adopt those recommendations “without further delay.”

The president made this announcement after he was informed that Republicans would block a vote on an immigration bill at least for the remainder of the year.

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