OnTuesday US voters will go to the polls to elect 435House of Reprehensive members, 34Senators, and of course, a new US President and Vice President. The biennial election will set the stage forthe next two years of federal legislation. Pundits are calling it the mostimportant election of our lifetime and are predicting massivechanges in immigration law.
IfHilary Clinton is elected, she promises to make immigration a top priority. She iscalling for Comprehensive Immigration Reform including a pathway tolegalization for millions of undocumented and illegal foreign nationals. She expects to have legislation proposed withinher first 100 days.
IfDonald Trump is elected, he is callingfor a wall along the US-Mexican borderand greatly increased regulation in all corners of immigration. His changes to the law willbegin immediately.
Itseems unlikely to MU Law that any of this happen immediately. It also seems unlikely that any immigration changeswill be incremental, not dramatic.
Immigrationlaws are implemented in two basic ways: legislatively and administratively. Legislative laws must pass both branches ofCongress, the House and the Senate. The betting markets have concluded thatthe most likely outcome for this week’s election is that Hillary Clinton willwin the presidency, the Democratic Party will have a tiny majority in theSenate, and the House will remain in significant Republican control. Betting markets have proven to be a more reliable predictor ofelectoral outcomes than polls or pundits.
Thatoutcome is a recipe for gridlock. Evenif Hillary Clinton wants to push for a massive legalization program, she willneed to convince at least 50% of the House membership to go along with theplan. It is unlikely that a Republican-controlled House will want any part of a Clinton-inspired immigration bill. They will be much more likely to spend their timeon more email investigations and Benghazi hearings.
APresident-elect Clinton may be able to make some progress on administrative changes,which is also known as Executive Action. Administrative changes are interpretations of law by the Department ofHomeland Security. The Presidentultimately sets all policy for administrative agencies such as DHS.
PresidentObama had some success in this area, such as sanctioning the DACA rules, whichallowed undocumented foreign nationals to obtain work authorization if theyentered the US as children, provided that they had no other criminalrecord.
Throughthe USCIS, President Obama announced some additional Executive Actionin November 2014. He has had mixedsuccess in this area. He was rebuked bythe courts for overstepping his administrative authority when he sought tocreate DAPA, a program that would have extendedDACA-like rights to undocumented parents of US citizens and permanent residents. On the other hand, the USCIS has expandedwork authorization for certain spouses of H-1B visa holders.
Whichleads to our prediction: Hillary Clinton will win the US Presidency but willnot have success passing meaningful immigration legislation. She may be able to make marginal changes toimmigration policy through administrative decision-making, which will likely beless-dramatic and newsworthy.