Q&A of the Day – Is President Biden’s Parole in Place Program Legal?
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Today’s Entry: Brian, how is President Biden’s new amnesty program possibly legal?
Bottom Line: On Tuesday President Biden officially signed the executive order directing the Department of Homeland Security to begin implementing his so-called “Parole in Place” program. The program is effectively an expansion of the Obama directed DACA, or Deferred Action for Childhood Arrivals program. The average age of a DACA recipient is now 31- which is also an important distinction when the potential merits of DACA are discussed. DACA recipients are now adults. But DACA recipients are also illegal immigrants which is the important place to start when discussing whether President Biden has the lawful ability to direct immigration status through executive action.
The battle over the legality of the DACA program has been ongoing for as long as it has existed. What’s been determined is that it isn’t legal. Last September, in the case brought by the state of Texas against the Obama-era program, a U.S. District Court ruled that the program is illegal. The decision is under appeal and could eventually be decided by the United States Supreme Court which is also where Biden’s newly directed Parole in Place program may eventually be decided as well. Let’s start with what the new Biden program seeks to do as stated by DHS:
An individual must:
- Be present in the United States without admission or parole;
- Have been continuously present in the United States for at least 10 years as of June 17, 2024; and
- Have a legally valid marriage to a U.S. citizen as of June 17, 2024
In addition, individuals must have no disqualifying criminal history or otherwise constitute a threat to national security or public safety and should otherwise merit a favorable exercise of discretion.
Noncitizen children of potential requestors may also be considered for parole under this process if they are physically present in the United States without admission or parole and have a qualifying stepchild relationship to a U.S. citizen as of June 17, 2024.
That takes us to what the law actually says about this. Article I, Section 8, Clause 18 addresses Congress’s Immigration Powers. As is stated on the Congressional website under immigration powers:
- Long-standing Supreme Court precedent recognizes Congress as having plenary power over immigration, giving it almost complete authority to decide whether foreign nationals (aliens, under governing statutes and case law) may enter or remain in the United States. In exercising its power over immigration, Congress can make laws concerning aliens that would be unconstitutional if applied to citizens.9 The Supreme Court has interpreted that power to apply with most force to the admission and exclusion of nonresident aliens abroad seeking to enter the United States.10 The Court has further upheld laws excluding aliens from entry on the basis of ethnicity,11 gender and legitimacy,12 and political belief.13
Given that Congress has plenary, or absolute, authority to set immigration policy obviously any unilateral action taken by the executive branch altering policy would be in violation of the law. This is why DACA has been found to be unconstitutional and it’s why almost certainly President Biden’s Parole in Place Program will eventually be found to be unconstitutional as well.
What we’re effectively seeing the Biden administration do is a different version of a similar thing to what we saw two years ago preceding the midterm elections. It was evident that President Biden’s expanding student loan debt forgiveness plan was unconstitutional. He announced it and began the early stages of attempting to implement it just prior to the election in what was perceived to be an effort to energize the youth vote behind Democrats. It seemingly proved to be effective in achieving his desired result as it wasn’t until after the midterm elections that the Supreme Court struck down the plan. Enter into this year’s mix President Biden’s Parole in Place program. What isn’t nearly as clear is how effective it might be in helping to turn out the vote for him. It was just within the past week that a CBS News/YouGov poll found 62% of all registered voters support a federal government program to deport all undocumented immigrants currently living in the U.S. That included a majority, 53%, of Hispanic voters. And that deportation plan happens to be Donald Trump’s plan.