Supreme Court May Not Stop some Obama Executive Action Work Permit Programs

By Joe Guzzardi
May 20, 2016
 
Within about a month, the Supreme Court will rule on U.S. v. Texas, the lawsuit brought by a 26-state coalition which challenged whether President Obama can unilaterally confer affirmative benefits to five million aliens. Two lower courts upheld the states’ contention that Obama’s executive action, deferred action for parents of Americans or lawful permanent residents (DAPA), is unconstitutional. Only Congress, and not the Executive Branch, can legislatively accord benefits to illegal immigrants.
 
Both pro-immigration and pro-enforcement advocates are on edge. Should the Supreme Court rule in the administration’s favor at least five million aliens will receive employment authorization documents, driver’s licenses, and some welfare benefits. If, on the other hand, the Supreme Court strikes down DAPA, and a 4-4 tie among the justices translates into a win for the enforcement-oriented, then unemployed and working Americans at risk of job displacement from illegal immigrants will have won an important battle.
 
Capitol Hill insiders, however, predict that regardless of how the Supreme Court rules, Obama’s work permit giveaway programs will continue until his last day in office—“at the president’s discretion,” as U.S. Citizenship and Immigration Services described it in its memo titled “Standard Operating Procedures for Handling Requests for Deferred Action.”
 
The USCIS standard procedure memo’s (SOP) biggest drawback is that, as written, no illegal immigrant would be blocked from applying for deferred action. Unlike DAPA, the program the Supreme Court is reviewing, and its predecessor, deferred action for childhood arrivals (DACA) which specifically limits their programs to defined categories—parents or childhood arrivals—SOP has no restrictions, and would be an avenue available to any illegal immigrant who submits a letter explaining his reasons along with his identification, previously used visas, and two passport-style photographs.
 
The SOP loopholes that could open deferred action to all illegal immigrants poses a grave threat to an already unmanageable immigration system. Unanswered questions include what standards, if any, would the applicant have to meet, what conditions would automatically disqualify an applicant, and would the applicant be subject to a face-to-face interview?
 
For months, at least one concrete example of an Obama mandate extending work privileges without legislative authority has been in place. With Obama’s blessing, DHS allowed international students with degrees in science, technology, engineering, and math to receive up to two 24-month extensions beyond the original 12-month period provided for under Optional Practical Training. In short, a foreign-born student can now work for six years in post-graduation employment instead of the one year allowed under the cap that the original legislation called for-—solely on Obama’s say so. 
 
Americans who think that Obama’s unilateral, under the radar immigration maneuvering is of little consequence to them should take a second look at the April Bureau of Labor Statistics report. According to BLS, 5.8 million Americans are currently unemployed but want a job, the number of long-term unemployed, those jobless for 27 weeks or more, stands at 2.1 million, involuntary part-time workers, those who would prefer full-time employment but cannot find it, number 6.0 million, and 1.7 million persons are classified as marginally attached to the labor force. At the same time, 25 million foreign-born are employed.
 
The Obama administration’s American worker displacement has been stealthy, but steady. Since 2009, the U.S. foreign born-population has increased by 5.79 million, more than four million of whom currently work. Since the Supreme Court is only analyzing DAPA’s constitutionality, Obama could continue to put working Americans at risk by handing out more employment authorization permits to illegal immigrants.
 

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Joe Guzzardi is a Californians for Population Stabilization Senior Writing Fellow. Contact him at [email protected]