Challenges to the Executive Action on Immigration Advance

The U.S. House of Representatives on Wednesday passed a Department of Homeland Security (DHS) appropriations bill that includes amendments to “de-fund ” President Obama’s recently announced plans for executive action on immigration, as well as earlier immigration initiatives of the Administration, including the Deferred Action for Childhood Arrivals (DACA) program. The restrictive amendments would prohibit DHS from using application fees to fund these initiatives. 

The action to de-fund the programs came as a series of amendments to H.R. 240, the Department of Homeland Security Appropriations Act of 2015. 

The amended bill aims to deny funding for both employment-based executive actions and those directed at undocumented foreign nationals. Specifically listed as targets for de-funding are two key executive action memoranda on business issues, “Policies Supporting U.S. High Skilled Business and Workers,” and “Modernizing and Streamlining the U.S. Immigration Visa System for the 21st Century.” Funding for the expansion of the existing DACA program and the new Deferred Action for Parental Accountability program (DAPA) would be disallowed. A catch-all provision in the amendment would prohibit DHS from undertaking future initiatives “similar” to those slated for de-funding, with the goal of chilling future regulatory activity by this Administration. 

The bill would also prohibit Immigration and Customs Enforcement from exercising prosecutorial discretion in removal proceedings and related issues, and would prioritize the removal of foreign nationals convicted of any offense involving domestic violence, sexual abuse, child molestation, or child exploitation. 

A “Sense of Congress” provision would urge the Administration to prioritize legal immigration adjudications over those benefiting undocumented individuals and to “use funds available under existing law to improve services and increase the efficiency of the immigration benefits process for aliens abroad or who are lawfully present in the United States.” 

What’s Next for the Appropriations Bill 

H.R. 240 is expected to be brought up in the Senate in February, where the prospect for passage is less likely. If it does pass the Senate in its current form, the White House has already stated that the President will veto it. It may be too early to tell how the current differences will be reconciled, though the White House is still hopeful that both Houses of Congress will ultimately move forward on a “clean” funding bill – that is, one that does not de-fund the President’s immigration initiatives. 

Court Challenges to Executive Action 

The Administration is also facing a 25-state lawsuit filed in a federal district court that challenges DACA and DAPA because of the adverse effects they would purportedly have on the plaintiff states. Oral argument on a preliminary injunction in the case, Texas et.al. v. United States, is to take place today. A ruling could come in the next few weeks. If the injunction is granted, it would almost certainly lead to a period of intense legal maneuvering, beginning with an effort by the Administration to obtain a stay of the injunction, as well as an appeal that could take several months to resolve. 

What This Means for the Future of Executive Action 

Notwithstanding the challenges on Capitol Hill and in the courts, the Administration continues to move forward with implementation of its immigration initiatives. Advocates are proceeding on the assumption that programs will go into effect consistent with the November announcement.

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