Analysis of Immigration Executive Order

Illegal immigration has once again been thrust into the spotlight by President Obama’s speech to the nation about his Executive Order on the subject. It had mostly taken a backseat during the election as neither side really wanted to talk about any issue facing the nation.

This post is not to say whether the Executive Order is good or bad… or even legal.  The pundits are already out spinning the story as are Republican lawmakers in Congress. So let’s look at what is being done by this executive order.

  • Increased border security which has been increased throughout the Obama presidency
  • Increases the number of work visas for skilled workers so that more may apply and come to work here
  • It allows certain illegal immigrants a temporary reprieve from being deported but only specific categories


Temporary Reprieve, Not Amnesty

I will start with the last point since it will be the one with the most criticism.  The Executive Order is not amnesty. It does not grant citizenship or even permanent residency.  It is a temporary reprieve from being deported and gives the people an attempt to get their immigration status corrected.  It only applies to a specific group of people.

  • A child born in the US to an illegal immigrant
  • The illegal mother and/or father of that child that is born in the US
  • DREAMers — children born outside the US but brought to the country illegally by their parents

All of them must be in good standing with the law.  No criminal records or ties to terrorism.  None will have access to social welfare or any other form of government assistance.


Border Security

And speaking of links to terrorism, let’s dispel another Republican talking point.  According to the Department of Homeland Security, in an article for POLITICO, there have been no terrorists captured coming across the Mexican border.  However, two were captured trying to cross the Canadian border into the US.

Our focus tends to always be the Mexican border when this issue also applies to the country that we share the largest border with… Canada.  This also concerns with people from Asia that stowaway on cargo ships, and even those that come up from Caribbean islands though Cubans have a special category all their own. (Wet-Foot, Dry-Foot)

But what about overall border security along the border?  President Obama claims that he has more border patrol agents on the ground than any previous administration. (Politifact)  There has been an increase in border patrol agents throughout his administration, but it’s a result of a 2007 bill passed by a Democratic-controlled Congress during the Bush administration.  (Washington Post)  The President can take full credit though for having deported more illegal immigrants than any previous administration. (Pew Research)


Skilled Workers

According to the State Department, every fiscal year the US government issues a total of 140,000 work visas (before Obama’s executive order).  This number is usually maxed out fairly quickly each year.  Companies like Microsoft, Google, Apple, etc. have been trying to get the number raised for years as they have job openings here in the US that cannot be filled by enough American workers as there are just not enough in the computer sciences.  These companies have also threatened to take the jobs elsewhere if they cannot be filled here thus further depleting a tax base.  These are people wanting to come to the US legally to work and pay taxes.


Senate Democrats passed a comprehensive immigration bill during the last session.  House Republicans passed their own version of immigration reform bills.  Neither chamber took up the legislation of the other and there was no conference committee to resolve the differences.  The issue is now in play.  Maybe the new Congress can actually pass immigration reform and send it to the President.  Any new legislation would override the Executive Order.

Executive Orders aren’t defined in the Constitution though the Supreme Court has ruled that they are legal so long as they are used to enforce the laws passed by Congress.  I would encourage the administration to inform us which laws they are enforcing with this Executive Order on immigration.  As for the rest of the partisan rhetoric, I think we’ve dealt with it.


The Law Regarding Unaccompanied Immigrant Minors

Since October of 2013, 52,000 children from Central America have been apprehended crossing the US-Mexico border illegally.  They are coming here by themselves.  It’s just one more piece in the larger immigration debate that seems to have quieted down until after the November election.

Republicans in Congress are quick to point the finger at the Obama administration.  Two years ago, the Obama administration decided to defer deporting certain young immigrants who met certain criteria and have been living in the states continuously since June 2007.  But as usual with partisan rhetoric, they are missing half of the debate.

FT_14_06_06_UnaccompaniedChildren_mapIn 2008, Congress passed the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA), which the Senate passed by unanimous consent, and was signed by President George W. Bush.  Though the law’s main intent deals with human trafficking, it did contain a section that deals with children arriving in the US illegally unaccompanied by an adult.

Children from Mexico are returned immediately, as they would be if they were an adult apprehended illegally entering the US.  However, children from a non-contiguous nation such as those in Central America have a different process.  The children must be turned over to the Department of Health and Human Services which is in charge of their care, finds them safe housing, and apprises them of their legal rights as their immigration cases are decided.  Deportation proceedings can take time as immigration courts are generally backed up.

Republicans, who in recent weeks have been claiming that the Obama administration is not enforcing the laws passed by Congress, are actually demanding that the President not enforce the TVPRA and send the children back to their home countries immediately without any deportation hearings as would happen if they had come from Mexico.

Last week President Obama signaled a willingness to do so but only if Congress modified the TVPRA to allow him to do so.  The leadership of both the House and the Senate do not seem to be interested in changing the current law, and as of July 7, the Obama administration has backtracked a little though it still would like more authority to act.  Until the law is changed, the children that have come here have to go through the process outlined by the TVPRA.  President Obama does plan to ask Congress for an extra $2 billion in extra funds to deal with the situation.

In the debate surrounding these children, it should be noted that they are not refugees or seeking asylum which would be completely different.  Asylum and refugee are special legal protections only available to people have fled their home countries out of fear and cannot return and can only be sought once they have entered the US.  There are strict requirements that a person must show in order to be granted those protections.

And though we debate this issue now in regards to Mexicans and those from Central America countries, this is not the first time we as a nation have had this discussion.  In the mid 19th-century, it was over Irish immigrants.  Most were processed legally through Ellis Island but the same arguments that were used then are still being used today against legal and illegal immigrants.

In the end, the TVPRA is the law that was passed by Congress that President Obama is to enforce.  If Republicans in Congress have a problem with that, then they need to change the law instead of telling the President not to enforce it.  Isn’t that the problem they have with him anyway?  This doesn’t come as a result of a DREAM Act.  It comes from congressional inability to deal with our broken immigration system in terms of those wanting to come here legally, and what to do with those that enter illegally.

Abraham Lincoln once said, “The best way to get a bad law repealed is to enforce it strictly.”  Regardless for now, as we detain these illegal immigrant children, we need to treat them humanely until they are eventually returned to their countries of origin.  If Republicans want this process to be sped up, then they need to revise the TVPRA to allow it to be done.

By Order of the Executive

With any administration, we tend to hear from time to time the mention of Executive Orders being issued by the President.  Even in his last State of the Union speech, President Obama stated that he would use Executive Orders to move things forward where he could when Congress could not or would not act.  But what are Executive Orders and what can a President do with them?

No where in the US Constitution does it mention Executive Orders.  The most basic definition is that they are orders to help officers and agencies of the Executive Branch enforce the laws that are passed by Congress.

“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Article I, Section 1

The President cannot use Executive Orders to legislate though under Article II, Section 3, Clause 2, he is allowed to make suggestions to the Congress on legislation.  Under Clause 5 of the same Article and Section, the President must “take care that the laws be faithfully executed” that are passed by Congress.

All Presidents dating back to George Washington have issued orders that can be counted as Executive Orders even though they didn’t officially have the name.  Washington’s first one stated that the US was remaining neutral in the war between France and Great Britain.  The numbering system we use today when referring to a specific order was not done until later, though they have been retroactively back-numbered to an order issued by President Abraham Lincoln in 1862.  Since a Supreme Court decision in 1952, Presidents have also made sure to cite which specific laws they are acting under when they are issuing the Executive Order.


Though the President cannot use Executive Orders to make laws, the orders can still have a very wide-range effect.  President Harry Truman issued an Executive Order to integrate the armed forces, and President Dwight Eisenhower issued one to integrate public schools.  Executive Order #9066 was issued by President Franklin Roosevelt for the relocation of Japanese-Americans and German-Americans living in war zones during World War II.  He claimed it was within his power under his military authority.

Lately, there has been criticism from Republicans as President Obama has signed several Executive Orders that delay certain parts of the Affordable Care Act (ACA) even though the law makes no specific mention of the President having that ability.  Their claim is that the President is “cherry-picking” which part of the law to obey and which not to.  Executive Orders cannot violate the laws passed by Congress or the responsibilities delegated to the Executive Branch.

But with no clear constitutional authority, where is the line drawn for an Executive Order?  The Supreme Court ruled in Humphrey’s Executor v. United States that the President must obey the law.  He/She has no authority under the Constitution to suspend the enforcement of the law.  By this definition, the President’s actions described above in regard to the ACA are not valid without congressional approval.

So when any President states that he/she is going to issue an Executive Order to do something, one must not blink.  We must make sure that it falls within the responsibility of the President in executing laws passed by Congress.

“Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”
Justice Robert H. Jackson

A Tax By Another Name

It would appear that Congress has finally done its job and will pass a budget. The House passed the legislation last week before adjourning for the holidays while the Senate will do so this week.  While we might hail the bipartisan effort to avoid another government shutdown for the next two years, there are still many problems with this budget deal.  Though I could write an article on the hits and misses of this new budget deal, I’ve decided to focus on one particular part of it.

The budget deal eliminated $45-billion in sequester cuts (equally on military and non-discretionary spending) that were set to take place at the beginning of 2014, and also another $18-billion that were set to hit in 2015.  Sequester cuts were left in place beyond 2015.  To help make up the loss of this money, they needed to get additional income, and that comes in the form of an increase in airline fees.  Specifically, it targets the 9-11 security fee.


Currently, the 9-11 security fee is $2.50 for a nonstop flight and $5 for a flight with stops.  There is also a cap at $5 so that a consumer cannot get charged more than that.  The new budget increases the fee to $5.60 regardless if it is nonstop or not and eliminates the cap.  It also takes the money generated out of its own account where it can only be spent in certain ways and places it in the general fund.  This allows Congress to spend the additional revenue wherever it sees fit.

And while you might think to yourself that $2.50 or even $5.60 might not seem like a lot, it’s because you haven’t taken into account the rest of the taxes and fees that are associated with that ticket.  A $700 plane ticket might have almost $200-worth of taxes and fees in the price.  When you start adding up all the “little” taxes and fees, you suddenly realize that you’ve been “nickled-and-dimed” out of a lot more.

So what exactly are all the taxes and fees that are included when you by a plane ticket? (per person)

  • Domestic Passenger Ticket Tax: 7.5% of the base ticket price.
  • Flight Segment Tax: $4 per connection (this increases $0.10 each year)
  • International Travel Tax: $17.20 which is a departure and arrival tax
  • Passenger Facility Charge: $4.50… airports have been wanting this increased
  • September 11 Fee: Currently $2.50 and will be raised to $5.60

Those are some of the bigger taxes and fees, but there are still lesser ones that add to that ticket price.

  • Frequent Flyer Tax: 7.5%
  • Cargo Waybill Tax: 6.25%
  • Commercial Jet Fuel Tax: $0.04
  • Aviation Security Infrastructure Fee: Varies
  • APHIS Passenger Fee: $5
  • APHIS Aircraft Fee: $70.75
  • Customs User Fee: $5.50
  • Immigration User Fee: $7.00

And just like with all of these other taxes and fees, the increase in the 9-11 security fee will be passed on to the consumers despite the billions in  profits of the major airlines and the already high costs of a plane ticket.  In an article on The Hill, Delta Airlines CEO Richard Anderson stated that he would be doing just that… passing along the increase to the consumer.  According to the Memphis Business Journal, Delta Airlines profits increased 18% in 2012 to $1-billion.

Airlines want more people to fly but yet they continue to raise prices for whatever reason they come up with… which does include when the government includes a tax on them.  As prices rises, more and more people are not able to afford the ticket prices and are therefore left out.  In 2007, a ticket to London could cost about $750.  That same ticket in 2013 cost about $1500, per person.  There will be cost of living increases during that time, but not to the point that it doubles prices.

Sen. Patty Murray (D-WA) and Rep. Paul Ryan (R-WI) have repeatedly said that the new budget does not raise or include new taxes.  Though that may be true in terms of income taxes, they apparently aren’t counting the increase in the 9-11 security fee.  Just because something is a fee doesn’t mean that it’s not a tax.  A fee is a tax by another name.  So yes, this budget does increase taxes.  They should have just let the sequestration cuts stay in place and just allowed the different departments to structure the cuts how they wanted.  There is enough waste in the budget as it is to accommodate the minuscule amount of cuts that the sequester had in place.

Taxes and Fees provided by MarketWatch and

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