THE BLOG
11/21/2014 08:36 am ET Updated Jan 21, 2015

President's Executive Action on Immigration

I recently interviewed Harry DeMell, an immigration lawyer since 1977 and a member of the American Immigration Lawyers Association, about the current immigration crisis.

Schupak: Mr. DeMell. President Obama said he needed to fix the immigration system. You seem to have some practical insights into President Obama's executive action on immigration last evening on this issue.

DeMell: Well. I see these actions as having a two edged effect. The system will be complicated in many ways but in others congress will be pushed into eventual action.

Schupak: Where do you see the complications?

DeMell: For one, the immigration court system will be greatly affected. At least one hundred thousand cases now before the court will have to be adjourned or closed. Right now cases are being adjourned at least in New York City to 2018. These matters can't be completed until the president's order is resolved. It will get worse.

Schupak: But the president has given the order. These matters can be closed.

DeMell: Not so simple. Not so fast. You know the saying that the devil is in the details. We really don't know the details and it will be a year before we do. First there has to be a proposed rule, which may take months. Then there will be comment time, which will be several months more and then a regulation cannot go into effect without 30 days notice. We will be in 2016 presidential season by then.

Schupak: So what will happen to these people?

DeMell: Those living in the shadows will continue to do so for a couple of more years while those in immigration court will have their cases postponed again and again. The courts will be bogged down doing this because they don't have enough resources.

Schupak: Eventually the policy will go into effect.

DeMell: Maybe not. I expect that there will be litigation from both sides when the regulations come out claiming that the regulations are too broad or too narrow. Either way this can hold things up well into or past the next presidential election. I suspect that the president's actions will create a situation where there may be a bi-partisan bill resolving this issue for the short run.

Schupak: How so?

DeMell: Both sides will want to seem to resolve the issue before the election. The Democrats will not want to put Hilary Clinton into a situation where she has to commit on one side or the other. It could affect her standing as a frontrunner. The Republicans want to portray themselves as the party of good, responsible and constitutionally restrained government and want to take the ethnic, race and origin issue off the table. As these issues get played out during the election season both parties will have reason to deep six it.

Schupak: So what do you see coming out of congress?

DeMell: I think that an increase in skilled worker temporary and permanent visas is in the works. Congress has to give the administrative agency and court more authority to allow people to stay here permanently when they have family hardships. The current law is too restrictive. That would obviate the need for an amnesty. Of course the agencies and the immigration court need more judges and more staff.

Schupak: What about the people who get benefits under this order? Will they be able to stay?

DeMell: Those who get benefits will be able to get green cards in the U.S. if they qualify under other provisions of the law. They aren't able to do so now.

Schupak: So you believe that this will lead to a fix?

DeMell: I would not call this a fix in any way but I do believe he has created a situation where congress will have to act before the next election. He has also created a situation where many fraudulent cases will be filed and where many people will want to come here illegally to do so. Not exactly a fix.

Schupak: Any other thoughts?

DeMell: One more. It is very dangerous for congress to allow this matter to go to the Supreme Court. If they rule that the president does not have this power future presidents might be restrained from doing things that need doing. If they rule he has the power a future president might abuse it in ways we cannot today imagine.

Schupak: So you think he has the power to do what he did?

DeMell: Just because you have a power does not mean you can use it without consequence.