Can the Dream Act be enacted without Comprehensive Immigration Reform?
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Can the Dream Act be enacted without Comprehensive Immigration Reform?

November 9, 2010, 12:16 pm
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Executive Orders - The President's tool for Quick enactment of the Dream Act

by Moses Apsan, Esq.

During the 2008 presidential election, Barak Obama made what is now, a broken promise to immigrant supporters that he would enact comprehensive immigration reform during his first year in office.  But that was yesterday and today things have changed. Following the republican victory in the house, Obama, in a  recent press conference failed to include any comment regarding his plans for immigration reform.

There still is a short window of opportunity to pass some type of immigration reform during the lame-duck congress. The democrats are still in charge during this transient period.  Both Senator Harry Reid (D-Nev) and  Sen. Dick Durbin (D-Ill.),  hope to pass the Dream Act before the new congress takes over in January.

After January,  when many anti-immigrant republicans take their position in the House and Senate, immigration reform efforts that include a path to citizenship for the estimated 11 million illegal immigrants living  in the United States appears next to impossible.

In recent months there has been a strong lobby, composed of immigration reform advocates and students, for enactment of the Dream Act.  Senator Reid inserted the act into the defense authorization bill along with a controversial repeal of “Don’t Ask, Don’t Tell," but Republican filibuster killed off chances of passing the DREAM Act before the November election.

Sen. Dick Durbin (D-Ill.), the bill’s primary sponsor, re-introduced the act the day following the defense authorization bill filibuster. He said he hoped it could pass during a lame-duck session. “Some members of the Senate who are not going to return may vote in our favor,” he said. “I hope that’s the case.”  At a Dream Act event he told supporters that  “We’re not giving up,” … “This is not the end of the fight, it’s just the beginning.”

If all else fails, it's up to Obama to keep his promise of immigration reform and he has a way to do this; Executive Order.  An Executive Order  can provide immediate relief to certain Draconian provisions of the current immigration laws even while waiting for a comprehensive immigration reform.   "[They] have been used to manipulate federal agencies in directions contrary to congressional intent"

Executive Orders (EOs) are legally binding orders given by the President, acting as the head of the Executive Branch, to Federal Administrative Agencies. Generally EO’s are used to direct federal agencies and officials in their execution of Congressional established laws or policies. However, there have been many instances that EO’s have been used to manipulate federal agencies in directions contrary to congressional intent.

For example on July 3, 2002, President George W. Bush signed Executive Order (EO) 13,269.  The EO expedited the naturalization of soldiers in active duty by making them immediately eligible to apply for naturalization.  For those soldiers were recently married it also extended  their spouses  conditional status (Green Card)  for one year, and in six-month increments thereafter, until their spouses return from abroad.

Executive Orders are very powerful. They do not require Congressional approval to take effect but they have the same legal weight as laws passed by Congress. The President's source of authority to issue Executive Orders can be found in the Article II, Section 1 of the Constitution which grants to the President the "executive Power." Section 3 of Article II goes further and directs the President to "take Care that the Laws be faithfully executed." To implement or execute the laws of the land, Presidents give direction and guidance to Executive Branch agencies and departments, often in the form of Executive Orders.

If Congress is unable or unwilling to pass  Comprehensive Immigration Reform this year, the President could issue sections of its content (such as the Dream Act) as a series of Executive Orders. In this way he would provideimmediate relief from the sections of the immigration laws that are creating the most problems. The Senate conservatives would find difficulty in blocking these orders as 2/3 majority would have to vote against it; which is unlikely.  The Executive Orders could be challenged in court, but that would take a very long time, and in the meantime, enough relief would be given to the  millions illegal immigrants in this country until a Comprehensive Immigration bill is finally made into law.

Author: Moises Apsan
Attorney with over 35 years of experience. Past president Federal Bar Association NJ Chapter (1997-2002). Offices in New York, NY, Newark, NJ. Tel: 888-460-1800 and
Apsan Law Offices
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