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Dream Act: One President Above The Law; Courting Democrat Votes; Betraying The Separation of Powers

By Jerad McHenry

The Dream Act is still hotly debated and some people demand that President Obama usurp his authority under the separation of powers to keep Dream Act eligible students in the country. 

The DREAM Act is still a bill, but the Latino advocacy group Presente is urging President Obama to pass an executive order to prevent the deportation of DREAM Act eligible students.  These calls came ahead of Obama’s June 14th visit to Puerto Rico and were voiced on a June 13th conference call. 

The DREAM Act is a bipartisan immigration bill proposed by Senators Orin Hatch (R-UT) and Dick Durbin (D-IL) which allows undocumented immigrants who have graduated from an American high school or received their GED and who have been on American soil from when they were 15 or younger to be granted Conditional Permanent Residency on the premise that they will complete either two years of college or two years of military service within six years of being granted Conditional Permanent Residency.  

Presente views the passage of the DREAM Act as a matter of human rights.  For Puerto Rican-Americans who see large numbers of illegal would be DREAM Act eligible immigrants immigrate to their island territory, presidential support of the Dream Act and a pre-emptive executive order is key to courting their votes.  Courting Puerto Rican voters was thought to be the main purpose of President Obama’s trip to the island.  But, can the President pass an executive order related to a law that has yet to pass? 

I asked the office of Repressentative Luis Gutierez (D-IL), a proponent of the DREAM Act and a panelist on the conference call: The DREAM Act has not been passed by Congress and is not a law.  How can the president halt deportations of people potentially eligible under a law that does not even exist? 

Representative Gutierez’s press secretary Doug Rivlin didn’t claim that Representative Gutierez was seeking an executive order.  “Not an executive order,” Rivlin said.  “The president has authority under existing law to exercise prosecutorial discretion to grant deferrals of various types to people who would be subject to deportation.  So we’re not talking about an executive order.  We’re talking about how the current law is applied.”

Nonetheless, central to Presente’s conference call and press release was undocumented immigrant to Puerto Rico (and recent high school graduate) Esmeralda Hidalgo’s pleas for an executive order.  Hidalgo is quoted in the press release saying “I need President Obama to pass an executive order to stop deportations of DREAM Act students like me until we have the DREAM Act.” 

Presente invokes an Immigration Policy Center memo to argue that a pre-emptive executive order to halt deportations is needed and within the president’s power.  The memo delves into prosecutorial discretion.  The government may choose to not deport undocumented residents on the basis of humanitarian factors or administrative convenience.

Kenneth Mayer, a professor of political science at the University of Wisconsin and an expert on the American presidency explains, “law enforcement is sort of the archetype of an executive power.  Congress passes a statue, and it is up to the executive branch to enforce a law.  I suppose it’s possible you could use an executive order to set out your policies on how you’re going to enforce immigration laws, but it would be very difficult to use an executive order to implement legislation that hasn’t been passed by congress.” 

When asked if the president would he be able to take a class of people who would be eligible [for the DREAM Act] and come up with a reason why they should stay or would it be suspect because it’s likely under the provisions of an un-passed law, Mayer responded:  “He could direct the INS or customs and immigration to not aggressively enforce.  He could not declare that everybody who has served in the military gets to go to college for in state tuition at an in state university.” 

Mayer went on to say that “it [the sought executive order] could be more symbolic than substantive.”

Presente argues that it would be inhumane to deny students illegally residing in the United States out of no fault of their own an education and an opportunity to stay in the country in which they have established roots.

Yet, discretion in deportation on the grounds of humanitarianism is usually pursued on the basis of it being “unsafe for foreign nationals to return home due to armed conflict, natural disasters, or other extraordinary conditions,” according to the aforementioned memo.  The unavailability of an American education or the severing of a person from cultural ties made in the US after arriving illegally may not be substantial enough grounds for the government to not deport illegal residents. 

When asked on what administrative or humanitarian grounds an executive order to prevent the deportation of DREAM Act eligible illegals could be passed, Bryan Griffith, Spokesman for the  Center for Immigration Studies said, “they [DREAM Act students] are not going to have any more humanitarian grounds than any other individual illegal immigrant.  Probably, they’d have even less because theoretically these are folks who have high school degrees.”

Griffith went on to say “otherwise, I think that maybe it’s just sorta them [Presente] coming up with content for another press release.

Presente launched an ad in Puerto Rico to coincide with the President’s visit telling people to demand an executive order to stop the deportation of DREAMERs. 

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Originally published on the Founders Compass: http://www.thefounderscompass.com/uncategorized/dream-act-one-president-above-the-law-courting-democrat-votes-betraying-the-separation-of-powers/

Jerad McHenry is a senior at the University of Wisconsin-Madison studying political science and journalism.  He is the current media intern for a Wisconsin Tea Party net start up: the Founders Compass

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