The Obama Administration’s November 2014 Immigration Initiatives: Questions and Answers
Released: 2014-11-24T00:00:00

On November 20, 2014, President Obama delivered a televised address wherein he broadly described the steps that his administration is taking to "fix" what he has repeatedly described as a "broken immigration system." Following the President's address, executive agencies made available intra-agency memoranda and fact sheets detailing specific actions that have already been taken, or will be taken in the future. These actions generally involve either border security, the current unlawfully present population, or future legal immigration.

The announced executive actionsâparticularly the granting of deferred action and employment authorization to some unlawfully present aliens, discussed below (see " Unlawfully Present Population ")âhave revived debate about the executive's discretionary authority over immigration like that which followed the Administration's June 2012 announcement of the Deferred Action for Childhood Arrivals (DACA) initiative. DACA has permitted some unlawfully present aliens who were brought to the United States as children and raised here to obtain temporary relief from removal and, in many cases, employment authorization. Some have argued that DACA constitutes an abdication of the executive's duty to enforce the laws and runs afoul of specific requirements found in the Immigration and Nationality Act (INA) , among other things. Others, however, have maintained that the DACA initiative is a lawful exercise of the discretionary authority conferred on the executive by the Constitution and federal statute. Similar arguments will likely be made as to the November 2014 actions, which affect a significantly larger number of aliens than DACA.

This report provides the answers to key legal questions related to the various immigration-related actions announced by the Obama Administration on November 20, 2014. Because the various documents outlining these actions have been available for a limited period of time, and additional information is expected to be released in the future, these answers are necessarily preliminary. It is anticipated that the report will be updated to reflect further developments.

Other reports discuss related issues, including CRS Report R43782, Executive Discretion as to Immigration: Legal Overview , by [author name scrubbed] and [author name scrubbed]; CRS Report R42924, Prosecutorial Discretion in Immigration Enforcement: Legal Issues , by [author name scrubbed] and [author name scrubbed]; CRS Report R43708, The Take Care Clause and Executive Discretion in the Enforcement of Law , by [author name scrubbed]; and CRS Report R43747, Deferred Action for Childhood Arrivals (DACA): Frequently Asked Questions , by [author name scrubbed].

What actions are being taken by the Obama Administration?

Following the President's televised speech, executive branch agencies and, in two cases, the White House announced dozens of specific actions as to immigration. These actions can be broadly divided into the same three categories noted by the President in his speech: (1) border security, (2) the current unlawfully present population, and (3) future legal immigration.

Border Security

Among the Administration's actions is "implement[ing] a Southern Border and Approaches Campaign Strategy to fundamentally alter the way in which we marshal resources to the border." This will involve the Department of Homeland Security (DHS) commissioning three task forces made up of various law enforcement agencies. These task forces will focus on the southern maritime border, the southern land border and West Coast, and investigations to support the other two task forces. Among the objectives of the new strategy are increasing the perceived risk of engaging in or facilitating "illegal transnational or cross-border activity" (a term which could include the migration of persons); interdicting people who attempt to enter illegally between ports of entry; and preventing the "illegal exploitation of legal flows" (which could include things such as alien smuggling at ports of entry).

Unlawfully Present Population

The Administration also proposes several actions affecting the current population of unlawfully present aliens, which is widely estimated to include some 11 million persons. Arguably the most notable of these actions are the initiatives to grant deferred actionâone type of relief from removalâto some unlawfully present aliens who were brought to the United States as children and raised here, or who have children who are U.S. citizens or lawfully permanent resident (LPR) aliens. Previously, in June 2012, then-Secretary of Homeland Security Janet Napolitano announced a programâcommonly known as Deferred Action for Childhood Arrivals (DACA)âwhereby unlawfully present aliens who had been brought to the United States as children and met other criteria could receive deferred action and, in many cases, employment authorization. The eligibility criteria for DACA expressly excluded unlawfully present aliens who were over 31 years of age, or who had entered the United States on or after June 15, 2007. However, aliens who are over 31 years of age, or entered the United States between June 15, 2007, and January 1, 2010, could receive deferred action as part of the November 2014 initiative. The 2014 initiative would also extend the duration of grants of deferred action (and work authorization) received by DACA beneficiaries from the current two years, to three years.

In addition, unlawfully present aliens who have children who are U.S. citizens or LPRs will also be eligible for deferred action (and employment authorization) pursuant to the November 2014 initiatives, provided they meet specified criteria. These criteria include (1) "continuous residence" in the United States since before January 1, 2010; (2) physical presence in the United States both on the date the initiative was announced (i.e., November 20, 2014) and when they request deferred action; (3) not being an enforcement priority under the Administration's newly announced priorities, discussed below; and (4) "present[ing] no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate."

Aliens granted deferred action pursuant to these initiativesâor otherwise âare eligible for employment authorization upon showing "an economic necessity for employment."

Other notable actions as to the current population of unlawfully present aliens include

revising DHS's priorities for civil immigration enforcement by, among other things, narrowing the scope of aliens who are considered "highest priority" for removal. Under the revised priorities, aliens without legal immigration status who have been in the United States since 2013, and who have not engaged in specified criminal activity or violated a prior order of removal, seem unlikely to be considered a removal priority. ending the Secure Communities program and replacing it with another program, known as the Priority Enforcement Program (PEP). PEP will resemble Secure Communities in that Secure Communities also utilized information sharing between various levels and agencies of government to identify potentially removable aliens. However, unlike Secure Communities, PEP will focus on aliens who have been convicted of felonies or "significant" misdemeanors, and generally will not entail states and localities holding aliens after they would have otherwise been released for the state or local offense that prompted their initial arrest so that DHS can take custody of them. ensuring uniform recognition of grants of "advance parole" by immigration agencies, so that aliens without legal status who depart the United States for another country pursuant to a grant of advance parole are not excluded from the United States upon their return on the grounds that they "departed" the United States and, thus, triggered the 3- and 10-year bars upon the admission of aliens who have accrued more than 180 days of unlawful presence in the United States, discussed below. (Parole is a device which permits an alien to enter the United States without satisfying the criteria for admissibility set forth in INA Â§212(a). With advance parole, an alien without legal status who is present in the United States is effectively granted a limited assurance, prior to departing the United States for another country, that s/he will be permitted to re-enter the United States upon his/her return.) granting "parole in place" or deferred action to some immediate relatives of U.S. citizens and LPRs who "seek to enlist in the Armed Forces," instead of just to qualifying relatives of active Armed Service personnel, the standing Reserves, or veterans of the Armed Services or standing Reserves. (While parole is typically granted to aliens outside the United States who are ineligible for admission under INA Â§212(a), parole in place entails granting parole to unlawfully present aliens within the United States.)

Legal Immigration

In addition, the Obama Administration announced several actions which it characterizes as "support[ing] our county's high-skilled businesses and workers." Included among these actions are as yet-to-be-determined steps to ensure that all immigrant visas authorized by Congress for issuance in a particular year are issued (assuming demand). Previously, delays in processing applications for immigrant visas resulted in some visas going unused (less than 5% of all available immigrant visas in recent years). This, in turn, prompted calls for Congress or the executive to "recapture" unused visas (i.e., to identify unused visa numbers from earlier years and make them available for current use). The Obama Administration's November 20, 2014, action does not purport to recapture previously unused visas. However, it can be seen as an attempt to avoid the perceived need for visa recapture in the future by ensuring that all immigrant visas available for issuance in a year are used. Relatedly, the Administration proposes as-yet-unspecified steps to "improve the system for determining when immigrant visas are available to applicants during the fiscal year," as well as consideration of "other regulatory or policy changes" to "better assist and provide stability" to be beneficiaries of employment-based immigrant visa petitions, including by ensuring that visa petitions remain valid when the alien beneficiary of the petition seeks to change employers or jobs.

Another action involves expanding the duration of any "optional practical training" (OPT) engaged in by foreign nationals studying science, technology, engineering, and mathematics (STEM) fields at institutions of higher education in the United States on non-immigrant F-1 student visas, as well as "expand[ing] the degree programs" eligible for OPT. Foreign nationals studying in the United States on F-1 visas have long been able to request an additional 12 months of F-1 visa status for temporary employmentâknown as OPTâin their field of study. Regulations promulgated in 2008 permitted students in STEM fields to request an additional 17 months of OPT, for a total of 29 months of OPT. However, only students in STEM fields are eligible for this 17 month extension, and these students can participate in OPT for no more than 29 months. Because any expansion of OPT can be seen, at least by some, as affecting employment opportunities for U.S. persons, the Administration also proposes to "improve" the OPT program by requiring "stronger ties" to degree-granting institutions, and "tak[ing] steps" to ensure that OPT employment is consistent with U.S. labor market protections.

Other actions announced by the Obama Administration include

making greater use of provisions in INA Â§203(b)(2)(B), which permit aliens with advanced degrees or "exceptional ability" to obtain an immigrant visa without a sponsoring employerâas is generally required for immigrants who are not sponsored by family membersâif their admission is in the "national interest." using the authority granted to the Executive in INA Â§212(d)(5)(A) to "parole" aliens into the United States when there is a "significant public benefit" to permit some inventors, researchers, and founders of start-up enterprises to enter and lawfully remain in the United States without a visa (or counting against the visa caps). clarifying and standardizing the meaning of "specialized knowledge" for purposes of the L-1B visa program, which allows companies to transfer certain employees who are executives or managers, or have "specialized knowledge" of the company or its processes, to the United States from the company's foreign operations. clarifying what is meant by the "same or similar job" for purposes of INA Â§204(j), which provides that employment-based immigrant visa petitions remain valid when the alien employee changes jobs or employers so long as the new job is in the "same or similar occupational classification" as the job for which the petition was filed. reviewing the so-called PERM program, whereby the Department of Labor (DOL) certifies that the issuance of an employment-based immigrant visa will not displace U.S. workers, or adversely affect the wages or working conditions of similarly employed U.S. workers, to identify methods for aligning domestic worker recruitment requirements with demonstrated occupational shortages and surpluses. DOL "certifying" applications for nonimmigrant T visas for aliens who have been victims of human trafficking, as well as certifying applications for nonimmigrant U visas for eligible victims of extortion, forced labor, and fraud in foreign labor contracting that DOL detects in the course of its workplace investigations. establishing an interagency working group to "streamline" the immigrant visa system, in part, by improving services and reducing employers' burdens.

Other

Other announced actions do not neatly fall into any of the foregoing categories or, in one case, could be said to involve multiple categories. Arguably key among these is the expansion of a preexisting Obama Administration program that provides for "provisional waivers" of the 3- and 10-year bars on the admission of aliens who have accrued more than 180 days of unlawful presence in the United States. Initially, this program reached only spouses, sons, or daughters of U.S. citizens. It will now be expanded to include qualifying relatives of LPRs.

As a general matter, unlawfully present aliens whose spouses or parents are U.S. citizens or LPRs may be eligible for an immigrant visa and adjustment to legal status. Obtaining such an immigrant visa typically requires the alien to leave the United States so that his/her visa application can be processed by U.S. consular officers overseas. However, leaving the country generally triggers the application of the 3- and 10-year bars if the alien has been unlawfully present in the United States for more than 180 days (as most unlawfully present aliens have been). These bars can be waived if denial of the alien's admission would result in "extreme hardship" to the alien's spouse or parents. However, the time required to obtain a waiver after leaving the country and triggering the bar has historically kept many unlawfully present aliens who could "legalize their status" under current law (see " Does granting deferred action to unlawfully present aliens legalize theirÂ status? ") from doing so. In 2013, the Obama Administration began allowing spouses or children of U.S. citizens to request and obtain provisional waivers of the 3- and 10-year bars to their admission while they are in the United States (they generally still must travel outside the United States for processing). However, the spouses and children of LPRs were ineligible for such provisional waivers until the 2014 actions.

Other actions announced in November 2014 include certain personnel reforms involving immigration and customs officers; promoting naturalization by eligible LPRs; establishing an interagency task force on "New Americans" to "increase meaningful engagement" between immigrants and the communities where they settle; and establishing an interagency working group to address the interplay of immigration and employment law.

Did the President issue an executive order?

As of November 24, 2014, the President has not issued an executive order regarding these immigration-related actions; nor has he given any indication that he will issue such an order. With the exception of several specific actions announced in two presidential memoranda, all other actions to dateâincluding the granting of deferred action to some unlawfully present aliensâhave been announced in intra-agency memoranda or fact sheets made available by executive agencies after the President's televised address. This is arguably consistent with prior actions in the field of immigration and, particularly, prior exercises of discretion in enforcing federal immigration law. For example, the 1990 "Family Fairness" program, discussed belowâwhich gave certain unlawfully present aliens temporary relief from deportation (later known as removal)âwas announced in a memorandum from the head of the Immigration and Naturalization Service (INS) to regional officials. Similarly, President Clinton relied on a memorandum to the Attorney General when authorizing deferred enforced departure (DED)âanother type of temporary relief from removalâfor some unlawfully present aliens from Liberia.

The fact that these actions were announced by means other than an executive order generally would not affect their permissibility. In other words, whether the deferred action initiatives, for example, are permissible depends upon whether the executive has the legal authority to grant this relief, not whether the initiatives were announced by means of an executive order or a memorandum from the Secretary of Homeland Security.

What is the legal authority for the Administration's actions?

Although each specific Administration action involves somewhat different legal authorities, three broad types of legal authority can be said to underlie all these actions: (1) prosecutorial or enforcement discretion; (2) express delegations of authority to the executive by Congress; and (3) the executive's discretion in interpreting and applying immigration law when congressional enactments are "silent or ambiguous" on specific issues.

Prosecutorial or Enforcement Discretion

The judicial and executive branches have repeatedly recognized that the determination as to whether to grant deferred action to an individual alien is a matter of prosecutorial or enforcement discretion. Such discretion has generally been seen as an independent attribute of the executive branch, and does not arise fromâor requireâan express delegation of authority by Congress. Thus, the fact that Congress has not authorized the executive to grant deferred action to aliens in the circumstances contemplated here (i.e., unlawfully present aliens brought to the United States as children or whose children are U.S. citizens or LPRs) does not, in itself, make such a grant impermissible.

Prosecutorial discretion is generally seen as affording the executive wide latitude in determining when, against whom, how, and even whether to prosecute apparent violations of federal law. However, the Constitution or federal statutes could potentially impose certain constraints upon this discretion, as discussed below (see " Are there constitutional or related constraints upon the executive's discretionary authority over immigration enforcement? " and " What other legal issues might be raised by the Administration's actions? ").

Express Delegations of Statutory Authority

In other cases, Congress has expressly granted certain authority to the executive that the Obama Administration would appear to rely upon for specific actions. For example, the definition of unauthorized alien in INA Â§274A(h)(3) has historically been seen to give the executive the authority to grant employment authorization documents (EADs) to aliens who are not expressly authorized to work by the INA. Section 274A(h)(3)'s definition describes an unauthorized alien as an alien who is not "authorized to be ... employed ... by the Attorney General [currently, the Secretary of Homeland Security]." The immigration agencies have relied upon this definition in promulgating regulations that permit aliens granted deferred action to receive EADs upon showing "an economic necessity for employment."

Other actions that would appear to involve express delegations of statutory authority include (but are not limited to) (1) paroling into the United States some inventors, researchers, and founders of start-up enterprises on public interest grounds (INA Â§212(d)(5)); (2) granting provisional waivers of the 3- and 10-year bars upon the admissibility of aliens who have accrued more than 180 days of unlawful presence in the United States (INA Â§212(a)(9)(B)(v)); and (3) permitting aliens with advanced degrees or "exceptional ability" to obtain an immigrant visa without a sponsoring employer if their admission is in the "national interest" (INA Â§203(b)(2)(B)).

Any exercise of delegated authority must be consistent with the terms of the delegation, as discussed below (see " What other legal issues might be raised by the Administration's actions? "). Questions could also be raised about whether particular exercises of authority are consistent with historical practice, other provisions of the INA, or congressional intent.

Executive Discretion When Statutes Are "Silent or Ambiguous"

In yet other cases, the Obama Administration would appear to be relying upon the deference generally given to the executive in interpreting and applying statutes in taking certain actions. As the Supreme Court articulated in its 1984 decision in Chevron U.S.A. v. Natural Resources Defense Council , when "Congress has directly spoken to the issue, ... that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." However, where a statute is "silent or ambiguous with respect to a specific issue," courts will generally defer to an agency interpretation that is based on a "permissible construction of the statute," on the grounds that the executive branch must fill any "gaps" explicitly or implicitly left by Congress in the course of administering congressional programs.

Among the gaps that Congress could be said to have left in the INA for the executive to fill are (1) what constitutes "extreme hardship" for purposes of the 3- and 10-year bars upon the admission of aliens who have accrued more than 180 days of unlawful presence in the United States; (2) the duration of any OPT for F-1 student visas holders; (3) what steps are to be taken to ensure that all immigrant visas available for issuance in a given year are used; and (4) what constitutes "specialized knowledge" for purposes of the L-1B visa program. The Obama Administration's November 20, 2014, actions can be seen to address all of these "gaps," as well as others not specifically noted here.

Any construction advanced by the executive must, however, constitute a "permissible" and "reasonable" interpretation of the underlying statute in order to be afforded deference by the courts, as previously noted. Also, the executive has no discretion in interpreting or applying the law where Congress has spoken to the precise question at issue.

Are there constitutional or related constraints upon the executive's discretionary authority over immigration enforcement?62

The Constitution confers upon the President the responsibility and obligation to "take Care that the Law is faithfully executed." Some of the Obama Administration's immigration actionsâincluding the identification of particular categories of aliens as priorities for removal, and the expanded use of deferred action to afford certain unlawfully present aliens with temporary relief from removalâare primarily premised upon executive assertions of independent constitutional authority. As previously noted, the executive branch is understood to have substantial discretionary authority to determine when and whether to pursue sanctions against apparent violators of federal law, an authority generally referred to as prosecutorial or enforcement discretion. Prosecutorial discretion is most closely associated with executive enforcement of federal criminal law. But the concept of prosecutorial or enforcement discretion is often applicable in civil contexts as well, including with respect to immigration officers' decisions regarding whether to seek the removal of aliens who have entered or remained in the United States in violation of federal immigration law.

A decision not to pursue sanctions against a particular individual is generally understood to be largely shielded from judicial review. Nonetheless, there are recognized limitations to the scope of this discretionary authority. As an initial matter, a general enforcement policy that is promulgated by an agency may not enjoy the same degree of immunity from judicial review as individual determinations not to pursue sanctions in a particular case. Moreover, courts have recognized that agency action must be consistent with congressional objectives underlying the statutory scheme it administers. When adopting a general enforcement policy, an agency may not rely on factors "which Congress has not intended it to consider" and substitute its own policy judgment for that which has been made by Congress. In particular, a general policy of non-enforcement by an agency could potentially be reviewable by a court and found to be an impermissible "abdication" of the agency's statutory responsibilities.

Whether the Obama Administration's November deferred action initiatives constitute a permissible exercise of enforcement discretion will be the subject of heated debate. This debate will likely center upon the Administration's identification of large numbers of unlawfully present aliens as non-priorities for removal, as well as the expansion of its earlier deferred action initiative to additional aliens. On one hand, it could be argued that aspects of these initiatives functionally constitute a blanket policy of non-enforcement of federal immigration statutes, and that this non-enforcement policy represents an abdication of DHS's statutory responsibilities to enforce federal immigration law. The INA contains several grounds of removal which are potentially applicable to aliens who may receive deferred action under the Administration's initiative. Moreover, while federal statute grants immigration authorities the power to provide some unlawfully present aliens with relief from removal, these statute-based forms of relief are limited in scope. It could be argued that the Administration's decision to focus enforcement resources almost exclusively on certain categories of removable aliens, while declining to pursue the removal of a substantial portion of the unauthorized population which does not fall within those categories, constitutes an abdication of its responsibilities under the INA. It might also be argued that, by enabling a sizeable portion of the unlawfully present population to request deferred action (a form of relief that is not expressly authorized by federal statute, except in narrow circumstances ) and work authorization, the executive branch is impermissibly substituting its own judgment as to whom should be legally allowed to remain in the United States for that of Congress.

On the other hand, it could be argued that resource constraints preclude DHS from pursuing the removal of all unlawfully present aliens in the United States, and that the decision to focus resources primarily upon the removal of those who have engaged in criminal activity, pose a threat to public safety, or recently entered the United States is consistent with applicable statutory enactments. Additionally, while the Administration's initiative would grant some unlawfully present aliens legal permission to remain in the United States for a specified period, it would not provide them with legal immigration status, or enable them to acquire benefits they are statutorily barred from receiving. The executive might further dispute arguments that the initiative constitutes a blanket policy of non-enforcement, and note that immigration officers retain ultimate discretion to grant deferred action on a case-by case basis, and that they are not barred from seeking the removal of unlawfully present aliens who have not been identified by DHS as enforcement priorities. It might also be argued that, particularly in light of the long-standing executive practice of granting deferred action and other forms of relief from removal, that Congress has implicitly signaled its approval or acquiescence to the executive's use of these forms of administrative relief, and the INA should not be interpreted to preclude the executive from granting such relief in certain instances. Accordingly, it could be argued that the executive branch's action, while affecting a substantial number of unlawfully present aliens, does not constitute a legally impermissible abdication of its statutory duties.

What other legal issues might be raised by the Administration's actions?

In some cases, specific actions taken by the Obama Administration could potentially be seen to run afoul of the provisions of the INA, in which case the executive action could be found to be impermissible (provided a plaintiff with standing to challenge the executive action were found (see " Who has standing to challenge the Administration's initiatives? ")). For example, one federal district court recently found that DACA is contrary to three purportedly "interlocking provisions" in INA Â§235 which some assert require that unlawfully present aliens be placed in removal proceedings. These provisions state that

1. any alien present in the United States who has not been admitted shall be deemed an applicant for admission; 2. applicants for admission shall be inspected by immigration officers; and 3. in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for removal proceedings.

Thus, the district court concluded that DACA runs afoul of the INA because many of the aliens granted deferred action through DACA had never been placed in removal proceedings as required, in the court's view, by INA Â§235. (This same court, however, later ruled that it lacked jurisdiction over the case. That decision has been appealed, and it is presently unclear whether and how the court's earlier decision construing INA Â§235 could be seen to restrain any future grants of deferred action. )

Similar statutory constraints could potentially be also be implicated in other Obama Administration actions, particularly as executive agencies take action to clarify the meaning and application of certain statutory language. For example, INA Â§212(a)(9)(B)(v) would appear to preclude DHSâin issuing guidance regarding waivers of the 3- and 10-year bars upon the admission of aliens who have been unlawfully present in the United States for more than 180 daysâfrom granting waivers based on mere "hardship," as opposed to "extreme hardship," or from considering hardship to U.S. citizen or LPR children, as opposed to U.S. citizen or LPR spouses or parents. This is because INA Â§212(a)(9)(B)(v) expressly refers to waivers

in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence , if it is established ... that the refusal of admission to such [an] alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien.

Does granting deferred action to unlawfully present aliens legalize theirÂ status?

A grant of deferred action does not constitute "legalization," as that term is generally understood. In the immigration context, the term legalization is widely used to describe a process whereby persons who are unlawfully present are able to acquire legal status, typically as LPRs. LPRs may generally acquire U.S. citizenship after a period of time if certain conditions are met.

Aliens granted deferred action are generally seen as "lawfully present" for purposes of federal law. This means that they do not acquire additional unlawful presence for application of the 3- and 10-year bars on the admissibility of aliens who have been unlawfully present in the United States for more than 180 days. Aliens granted deferred action may also be eligible for certain thingsâlike the issuance of driver's licensesâthat are made available, pursuant to federal, state, or local law, to persons who are "lawfully present" (or "legally residing") in the United States. (See " Will aliens granted deferred action be eligible for public benefits? ").

However, lawful presence is not the same as lawful status, and aliens granted deferred action lack lawful status. As such, a grant of deferred action, in itself, will not result in an alien obtaining LPR status, a "green card," or citizenship, or the ability to sponsor family members for immigration benefits. Aliens granted deferred action could potentially have their status legalized by Congress in the future, though, as happened with earlier "groups" of aliens granted temporary relief from removal.

Will aliens granted deferred action be eligible for public benefits?

As a general matter, aliens granted deferred action are not eligible for federal, state, or local public benefits because of the provisions of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996, as amended. PRWORA established a definition of qualified alien that does not include aliens granted deferred action, and generally barred aliens who are not qualified aliens from receiving federal, state, and local public benefits.

Nonetheless, aliens granted deferred action could potentially be eligible for certain benefitsâor things sometimes perceived as benefitsâbecause aliens granted deferred action are seen as "lawfully present" (or "legally residing") in the United States. This is, in part, because one Congress cannot bind future Congresses. Thus, despite PRWORA's restrictions upon the receipt of public benefits by aliens who are not included within its definition of "qualified aliens," subsequent Congresses have enacted legislation that provides for aliens' receipt of public benefits that is inconsistent withâand does not use the language ofâPRWORA. For example, Section 214 of the Children's Health Insurance Program Reauthorization Act of 2009 (CHIPRA) gives states the option to provide Medicaid and Children's Health Insurance Program (CHIP) coverage to otherwise eligible children and pregnant women "who are lawfully residing in the United States," a phrase which has been taken to include aliens granted deferred action. The Patient Protection and Affordable Care Act (ACA) of 2010 similarly permits persons who are "lawfully present" to participate in certain health care programs established under the act. However, while lawfully present for purposes of ACA has generally been construed in the same way as lawfully residing for purposes of CHIPRA, those granted deferred action through DACA have been deemed ineligible for certain benefits under ACA. (As of the date of this report, the Administration does not appear to have formally addressed how aliens granted deferred action through the November initiatives will be treated for purposes of ACA.)

Another reason why aliens granted deferred action may be eligible for state and local benefits, in particular, is that PRWORA expressly contemplates states enacting legislation, subsequent to PRWORA's enactment, that "affirmatively provides" for "unlawfully present aliens" to receive state and local public benefits. Numerous states have exercised this authority to enact legislation that makes at least some state or local public benefits available to either unlawfully present aliens or aliens who are not qualified aliens for purposes of PRWORA.

In addition, it is important to note that PRWORA's definition of public benefit is limited to

(A) any grant, contract, loan, professional license, or commercial license provided by [a government] agency ... or by appropriated funds ...; and

(B) any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by [a government] agency ... or by appropriated funds.

Given this definition, PRWORA has not been seen as barring the provision of certain benefits or services that some might characterize as public benefitsâsuch as driver's licenses or admission to public institutions of higher education âbut that are generally not seen as included within the definition of "public benefits" given by PRWORA.

Who has standing to challenge the Administration's initiatives?

The feasibility of legal challenges to the Obama Administration's actions will depend, in part, upon which specific actions are challenged and the legal bases for the challenge. However, regardless of the specifics of individual cases, standing requirements seem likely to pose a significant barrier for any legal challenge.

Standing requirements are concerned with who is a proper party to seek judicial relief from a federal court. They derive from Article III of the Constitution, which confines the jurisdiction of federal courts to actual "Cases" and "Controversies." The case-or-controversy requirement has long been construed to restrict Article III courts to the adjudication of real, live disputes involving parties who have "a personal stake in the outcome of the controversy." Parties seeking judicial relief from an Article III court must generally show three things in order to demonstrate standing: (1) they have suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) the injury is likely to be redressed by a favorable decision.

"Taxpayer Standing"

Those whose sole injury is the government's alleged failure to follow the law are generally found to lack standing because this injury is not personal and particularized. This is so regardless of whether the plaintiff alleges that his/her "tax dollars" can be seen as helping to fund the government's allegedly improper action or inaction.

Government Personnel

Government officers and employees, who have taken an oath to uphold the law, are generally found to lack standing so long as their only asserted injury is being forced to violate their oaths by implementing an allegedly unlawful policy or practice. Instead, they must allege some separate and concrete adverse consequence that would flow from violating their oath, and courts have reached differing conclusions as to whether the possibility of being disciplined for obeyingâor refusing to obeyâallegedly unlawful orders suffices for purposes of standing, or whether such injury is "entirely speculative" and, therefore, lacking imminence. In the case of the ICE officers who challenged DACA, the reviewing district court found that the plaintiffs had standing because of the possibility of such discipline. However, because such discipline constitutes an adverse employment action, the same court subsequently found that the plaintiffs' case is within the jurisdiction of the Merit Systems Protection Board (MSPB), not the court's. (This decision has been appealed to the U.S. Court of Appeals for the Fifth Circuit, and it remains to be seen whether the district court's view as to jurisdiction is upheld.)

Members of Congress

Individual Members of Congress are generally seen to lack standing to challenge executive actions. In Raines v. Byrd , the Supreme Court held that, in order to obtain standing, an individual Member must assert either a personal injury, like the loss of his/her congressional seat, or an "institutional injury" that cannot be addressed by an extant legislative remedy. It is presently unclear what might constitute the requisite "institutional injury," as discussed in CRS Report R43712, Article III Standing and Congressional Suits Against the Executive Branch , by [author name scrubbed].

State Governments

In several prior cases, states sought to challenge the federal government's alleged failure to enforce immigration law on the grounds that this "failure" imposes costs upon the states, which must provide public benefits and services to aliens who, under this argument, would not have been present within the state had the federal government enforced the INA. Some of these challenges have been rejected on standing grounds. In other cases, the court either "presumed" or did not address the standing requirements, but found that states' challenges presented a nonjusticiable political question. (The political question doctrine embodies the notion that courts should refrain from deciding questions that the Constitution has entrusted to other branches of government. )

Economic Competitors

An argument has recently been advanced that U.S. workers whose wages or working conditions are adversely affected by increased competition from aliens permitted to work in the United States could show "competitor standing" and, thus, challenge the Obama Administration's actions. This argument is, in part, based on a June 2014 decision wherein the U.S. Court of Appeals for the District of Columbia Circuit found that U.S. persons working as herders had standing to challenge the DOL's decision to issue certain guidance as to the wages and hours of foreign herders without notice-and-comment rulemaking because DOL's action caused "increased competition for jobs in their industry." However, this case could potentially be distinguished from a challenge to the Obama Administration's deferred actions, in particular, because the INA expressly requires the executive branch to take certain steps to protect U.S. workers from foreign competition when issuing certain types of nonimmigrant visas, like those at issue in the June decision. There do not appear to be any such requirements as to the executive's determination to issue employment authorization documents to aliens who do not hold employment-based visas.

Is there historical precedent for the Administration's actions?

Competing arguments have been made as to whether there is historical precedent for the Obama Administration's actions, particularly in granting deferred action to certain aliens brought to the United States as children and to the parents of U.S. citizen or LPR children. Such arguments are shaped, in part, by which historical actions are viewed as analogous to the current ones.

The executive has historically exercised its prosecutorial or enforcement discretion, delegated discretion, and/or discretion in interpreting and applying statutes to provide certain relief from removal to individual aliens who share certain characteristics and could, thus, be said to form a group or category. At different times, such relief has been made available under the rubric of parole (or refugee parole), extended voluntary departure (EVD), indefinite voluntary departure (IVD), deferred enforced departure (DED), temporary protected status (TPS), and deferred action. However, the shared name given to such actions can mask important differences in the legal basis for particular grants of discretion, among other things. For example, not all grants of parole to aliens in the 1960s should be seen as exercises of prosecutorial or enforcement discretion since Congress enacted legislation in 1960 that temporarily provided the executive with express statutory authority to parole "refugees" into the United States. Likewise, in some cases, Congress has expressly adopted legislation encouraging the executive to exercise particular forms of prosecutorial or enforcement discretion in certain cases, which could potentially be said to indicate congressional "approval" of the executive's exercise of this authority.

The temporary relief from removal granted to unlawfully present aliens that some have asserted most closely resembles the Obama Administration's deferred action initiatives âparticularly in terms of the percentage of the unauthorized alien population affectedâare the so-called "Family Fairness" initiatives of 1987 and 1990. In those cases, the Reagan and George H.W. Bush Administrations, respectively, granted indefinite voluntary departure (IVD) and employment authorization to certain immediate relatives of aliens who had legalized their status pursuant to IRCA. (These relatives were themselves ineligible for legalization under IRCA for various reasons.) The Obama Administration's 2014 deferred action initiatives can be likened to the Family Fairness initiatives in that they involve the granting of temporary relief from removal and work authorization to certain unlawfully present aliens based, in part, on humanitarian factors. However, certain differences could also be noted between the current and earlier initiatives, including that (1) the Reagan and Bush Administrations did not establish a centralized process whereby aliens could apply for relief from removal, instead permitting regional officials to grant relief; (2) some aliens who were denied relief through the Family Fairness initiatives were reportedly placed in removal proceedings, something that has not been reported with DACA; and (3) the Family Fairness initiatives were preceded (and followed) by the enactment of legislation legalizing certain unlawfully present aliens, whereas Congress has enacted no such legislation here. How much weight is given to these similarities or dissimilarities may ultimately depend upon one's views as to the permissibility and/or desirability of the current initiatives.