Current U.S. law, written and passed by Congress and signed by the President, makes it unlawful for foreign nationals to enter or stay in the country without authorization.[2] Despite this clear provision of law, the Department of Homeland Security (DHS) estimated that about 11.4 million people lived in the United States without authorization in January 2012.[3] Deportations, particularly interior enforcement, have decreased dramatically under President Obama,[4] and he has made clear his support for granting legal status to those who are in the country unlawfully.[5]
The Department of Homeland Security issued the Deferred Action for Childhood Arrivals (DACA) memorandum on June 15, 2012. DACA purported to set prosecutorial priorities and grant relief to each individual who (1) came to the U.S. under the age of 16; (2) continuously resided in the U.S. for at least five years before the date of the memo; (3) is currently in school, has graduated from high school, has a GED, or is an honorably discharged veteran; (4) has not been convicted of a felony, significant misdemeanor, or multiple misdemeanors or otherwise poses a threat; and (5) is not above the age of 30.[6]
In early 2013, debate began on a comprehensive immigration bill that would include an amnesty for most of the unlawful immigrant population. The U.S. Senate passed the Border Security, Economic Opportunity, and Immigration Modernization Act (S. 744) in June 2013.[7] In January 2014, the leadership of the House of Representatives issued “principles” for immigration reform[8] that included a general legalization much like S. 744.[9]
Since the issuance of the DACA memo and during debate over a larger amnesty, the number of people unlawfully crossing the U.S. border has increased significantly.[10] Many are turning themselves in, believing that they could qualify for deferred action even though the memorandum requires continuous residence since at least June 15, 2007.[11] Even if they do not qualify for DACA, lax enforcement in general means that most illegal immigrants will not be deported once they enter the interior of the U.S.[12] President Obama and some in Congress sought to advance a comprehensive bill, but momentum for such a measure has collapsed, in part as a result of the massive influx of illegal immigrants crossing the southern border of the United States.
Leaders in Congress have called for greater enforcement of the law, while President Obama continues to call for legalization. Recent press reports indicate that he is inclined to issue a memo like DACA for a large subset of the illegal immigrant population, perhaps up to 5 million.[13] That would be a mistake for three primary reasons: It is unjust, it is costly, and it will not work to stop illegal immigration. Before addressing these concerns, it is important to consider why we have immigration laws.
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