President Biden and Amnesty

There has been a lot of talk about the Biden Administration providing amnesty benefits to people living in the U.S. illegally. This rumor has motivated me to write an article on the subject of amnesty and how the U.S. government system works to check the powers of the various branches of the federal government.

What is Amnesty?

In the traditional sense of the word, amnesty is a law that provides the legalization of people who are illegally in a country. There are requirements such as an applicant living a certain amount of time in the country and illegal status. There are also bars such as criminal record, history of deportations, and fraud committed against the government. There are also various outcome options such as temporary status with conditions or a time frame to earn full legalization.

The Limits of Power of the U.S. Government

In the United States, this kind of policy change, such as a general amnesty program, comes from Congress. The U.S. Congress passed our current Immigration and Nationality Act (INA) in 1952. We are still using the 1952 statute if you can believe that. Think about how much the world has changed since 1952. Of course, in that timeframe, Congress has amended it many times, but there has been no major overhaul of our statute since 1952.

The President doesn’t have the power to change the Immigration and Nationality Act. The limitation of that power includes the law that determines who is legally in the U.S. and who is not. That is under Congress’ control, which is the branch of the U.S. government that is responsible for passing and changing laws. If we are going to have an amnesty, such change would have to come from Congress. The President cannot do it on his own.

The President’s Power to Enforce Laws

The President’s job is to execute the laws that are passed by Congress. He does have tremendous latitude to determine how the laws are executed. Think of the Deferred Action for Childhood Arrivals (DACA) program from President Obama in 2012. He had the power to determine how Immigration and Customs Enforcement (ICE) would enforce the law on deportation against those who came to or were brought to the U.S. at a young age. He basically created a program for sorting out those who he would not enforce the law against and those he would. But notice that no one became permanent residents or U.S. citizens through the DACA program. He did not have the power to change their immigration status from illegal to legal. He only had the power to determine under what conditions ICE would not enforce the law against those who were illegally in the U.S.

President Biden will be limited in the same way. Of course, he can influence Congress to make changes to laws such as tax law, the Affordable Care Act, and in this case, immigration law. But he cannot make those changes himself. Could you imagine what this country would look like if President Trump’s power to create law was not checked by Congress and the courts? While we may think in some ways President Biden having that power would be helpful, we can’t have it both ways. The rules don’t change in the U.S. government system based on which political party is in power. Just as President Trump was checked, so President Biden will be.

That being said, President Biden will have the power to resume and even expand the DACA program. He can affect the enforcement of immigration law through powers delegated to him by Congress, such as with Temporary Protected Status (TPS). He can decide to give work authorization and protection from deportation enforcement to people illegally in the U.S. but do not confuse that with amnesty. These kinds of programs do not change a person’s immigration status. Amnesty means taking a person with no immigration status and giving that person legal immigration status. A person on TPS or DACA is still illegal in the US under the INA. The President has just decided not to enforce the law against people who meet whatever requirements his immigration enforcement policy determines to be eligibility criteria for special treatment.

Do not misunderstand, the DACA program was not a violation of the law as some people seem to believe. Enforcement priorities and mechanisms are squarely within the authority of whoever is President. TPS is a program created by Congress and delegated to the President to execute as he or she wills, within the limitations put into place by Congress when they passed or amended the law. If Congress repeals TPS as a program or passes a law that makes the DACA program illegal, the President would lose access to those programs. As long as Congress does not limit the President’s power in that way, these types of enforcement prioritization mechanisms are available to the President to use in managing the enforcement of federal law.

At the end of the day, Congress is in charge, and that’s the way the country’s government system was set up. Members of Congress are the most accountable to the people and therefore have the most power. The limit to that power is every other member of Congress. They have to reach a consensus as a group to make a change in the law. If they don’t, nothing changes. President-Elect Biden can talk all he wants about an amnesty program, but he needs Congress to agree with him that it’s something we should do in this country. If they don’t agree, it will not happen, regardless of what the President wants.

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