Governing by Executive Order Creates Bad Government

Guest Post by Joe Guzzardi

Newly inaugurated President Joe Biden is following in the footsteps of Presidents Bush, Obama and Trump. At the outset of each of these administrations, immigration was front and center. Bush and Obama pressed for amnesties that failed in Congress; Trump and Biden have pursued very different immigration goals – expansion versus restriction – through Executive Orders or Executive Actions.

Between Inauguration Day and January 31, Biden signed 25 Executive Orders, 10 presidential memos and four proclamations, more than Trump and Obama combined during the same brief period. In the process, Congress has been relegated to the sidelines.

As expected, Biden also announced his plan to grant amnesty to the U.S. illegal immigration population, which is estimated between 12 and 20 million. This plan has generated considerable enthusiasm from Democrats and criticism from Republicans. Nationwide polling on amnesty is mixed, mostly along party lines. Congress rarely mentions, and journalists never report on, amnesty’s biggest reward: lifetime valid employment authorization documents (EADs). Because amnesty’s overall effect is mostly shrouded in secrecy, the public seldom gets the complete picture of its lasting consequences – an expanded labor market that by definition is injurious to U.S. workers.

Amnesty is the headline grabber – the onion’s top layer. But behind the scenes through the executive branch’s interference, and without congressional approval, other work permission privileges have been granted. The most well-known case is deferred action for childhood arrivals, DACA, which began under Obama in 2012. On his administration’s first day, Biden issued an Executive Order asking the Department of Homeland Security to “preserve and fortify” DACA. Since its creation, DACA has paved the way for about 700,000 workers who are not lawfully present in the country to legally enter the labor market.

Less prominent but more egregious is the policy that U.S. Citizenship and Immigration Services initiated in 2015 – again, without the required congressional sanction. For more than two decades, H-1B visa holders’ spouses, who hold H-4 visas, could not legally work in the U.S. This was a restriction that the parties had been advised of, which they understood and which they agreed to prior to entering the U.S.

Obama lifted the work constraint, and the Department of Homeland Security granted employment authorization to H-4-dependent spouses of H-1B nonimmigrants seeking lawful permanent resident (LPR) status. These H-4-dependent spouses, now commonly referred to as H4 EADs are, like DACAs, are eligible to receive permanent Social Security numbers. As long as their spouses remain employed and in status with their H-1B visas, H4 EADs can work at any job, and at any wage level. An estimated 120,000 H4 EAD work permits have been issued.

Now, Biden proposes to extend H4 EAD permits to new H-1B arrivals who have not yet received employment-based Green Card sponsorship. In addition to the approximately 65,000 H-1B work-authorized arrivals from abroad every year, their spouses would automatically be granted EADs. Under Biden’s plan, more than 125,000 workers each year would be added to the labor force in the H-1B and H-4 nonimmigrant categories.

Governing by Executive Action creates bad, undemocratic government. Through Executive Orders, Obama expanded immigration and then Trump sought to restrict immigration. Once again, we see a rush to broaden immigration under the new administration. All the while, those who have received DACA and H-4 work permission are constantly on edge wondering if their authorization will be renewed or if they’ll lose their employment authorization when the next administration assumes power. Against this setting, millions of unemployed and underemployed Americans face ever-greater job competition. The situation is fair to no one.

Congress has the legislative authority over federal immigration policy; the executive branch is assigned the duty to enforce immigration laws. In the best interests of immigrants and U.S. citizens alike, the proper order of creating immigration policies – through congressional legislation, not the president – must be restored.

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