It is not unusual for an incoming administration to take immediate steps to dismantle its predecessor’s policies. Steps to rescind economic and public support for issues that were once the driving force of the former president are taken rather swiftly – and America’s newly elected president, Joe Biden, is doing just that. Particularly with immigration.
The Biden administration announced its plans to introduce the U.S. Citizenship Act of 2021 on Jan. 20, which was also inauguration day for America’s new president. Some believe President Biden’s plans to be “the boldest immigration agenda any administration has put forward in generations.” Subsequently, on Thursday, Feb. 18 the Act was formally introduced by a dozen Democratic lawmakers in the House and Senate.
President Biden has seemingly prioritized comprehensive immigration reform by announcing its plans for a bill to Congress on day one. Yet it is important to note that to achieve this bill’s ambitions, the new administration must first confront America’s immigration past and dismantle executive orders, rules, policies and perceptions put in place by the Trump administration.
“Surprisingly, the attention given to immigration issues was pretty limited during the Democratic primary debates, but to the extent that there was discussion of immigration, there was a bit of a soft divide among the candidates. Some candidates seemed to be saying that the problem was really just Trump – and that removing him from the equation, and going back to the Obama administration’s approach to immigration would be enough,” said Anil Kalhan, JD, an expert in immigration law and professor in Drexel’s Kline School of Law. “Other candidates, most notably Julian Castro and Elizabeth Warren, took a very different position, saying that we need a more fundamental reconsideration of the approaches to immigration that presidents of both parties have embraced since the 1980s and 1990s.”
Kalhan spoke with the Drexel News Blog about some of the challenges, opportunities and uncertainties shrouding the present and possible future of immigration policy in America.
With Trump out of office, what’s in store for American immigration policy?
During the primaries, I would have identified both Biden and Harris as candidates who were more inclined to believe that restoring the pre-Trump approach to immigration policy and immigration enforcement would be sufficient. But at some point over the course of the last year, after Biden became the presumptive Democratic nominee, there was a pretty significant shift in the Biden campaign’s position in a more bold direction. I think what we are seeing with the Biden administration’s executive actions and the U.S. Citizenship Act of 2021 is a more ambitious kind of immigration reform agenda than we’ve seen in many years. And they really do seem to be moving quickly and with some energy out of the gate with their pledge for a 100-day partial moratorium on deportations, their termination of the Trump presidency’s Muslim ban, and their restoration of the Deferred Action for Childhood Arrivals (DACA)program.
Some of the initiatives they have announced will be fairly easy to achieve and implement, but there are other things that will be harder, particularly with respect to restoring the availability of asylum, which the previous administration totally eviscerated.
Is it difficult to rescind executive orders and change immigration rules?
They have legal authority to implement many of their executive actions, but they are going to face litigation and political headaches at every turn. The state of Texas already has sued over the 100-day deportation moratorium, because the Trump administration before leaving office planted a number of poison pills – where they essentially entered into agreements with a bunch of states with Republican elected attorneys general and governors to make supposedly binding commitments that if the federal government makes changes to existing immigration enforcement policies, then it would need to give 180 days notice and get approval from these states. It’s a very odd and legally dubious sort of agreement. But even with the absence of an agreement like that, the Biden administration is going to face a lot of conservative obstructionism. The 100-day deportation moratorium, for example, already has been blocked by a conservative judge in Texas who was appointed by Trump less than a year ago.
There are things that can easily be repealed by executive order. The Muslim ban was just an artifact of Trump issuing an executive order, being implemented by the executive branch – so that’s easy to rescind. There are similar kinds of things – administrative guidance documents and internal policies for the agencies and officials – those also should be relatively easy for the Biden administration to roll back. Assuming, of course, that it commits the resources, energy and political capital required to follow through on those initiatives within the immigration enforcement bureaucracy, which might resist some of these changes.
There are other initiatives that the Trump administration sought to implement more formally, by issuing formal regulations using notice and comment rule making. For regulations that have already gone into effect, the Biden administration would have to start from square one to issue new regulations, which can be a slow and cumbersome process. For regulations that went into effect in the final months of the Trump presidency, there are mechanisms for Congress to rescind those rules, but it is not clear whether Congress would be able or prepared to use those mechanisms. There are other Trump-era regulations that have been challenged in pending litigation, and it may be possible for the Biden administration to reverse those in settlement agreements with the challengers.
Is the U.S. Citizenship Act of 2021 politically feasible?
Legislation is the best way to achieve truly durable, lasting change, but it remains to be seen whether Congress is prepared to enact meaningful immigration reform legislation. The bill that has been introduced is a very ambitious one.
It is hard to know for sure how things will play out in Congress. It should be possible for the House to pass a bill that reflects the Biden administration’s reform vision to a significant degree. Democrats control the House, and in the last Congress the House did pass a version of the DREAM Act. But the U.S. Citizenship Act is a more comprehensive and ambitious bill.
The big question mark remains the Senate, given how closely divided it is. The Senate did pass a bipartisan, comprehensive immigration reform bill in 2013 by a pretty wide margin. But given the extent to which the Senate has become dysfunctional and polarized since then under Mitch McConnell’s tenure as majority leader, it will be more difficult to enact a reform bill now unless the Senate eliminates the legislative filibuster. At least two Democratic senators, Joe Manchin (West Virginia) and Kyrsten Sinema (Arizona) have said that they are not in favor of eliminating the filibuster, so the fate of meaningful immigration reform might ultimately rest in their hands.
If Congress is not able to pass an ambitious, comprehensive bill along the lines of the U.S. Citizenship Act, then the Biden administration and members of Congress will have to decide if they want to try to enact less comprehensive, piecemeal reforms. They should be able to enact immigration reform legislation in some form, and while there’s no guarantee they will be successful, there are strong incentives for both Biden and congressional Democrats to work hard to make sure that happens. The big question mark is what the details of that legislation will look like.
Excerpts above are further expanded upon in the following publication: Building Immigration Policy Back Better (December 2020). What’s the Big Idea? Recommendations for Improving Law & Policy in the Next Administration and in the States.
Media interested in speaking with Kalhan should contact senior news manager Emily Storz at email@example.com or 215.895.2705.