Sunday, November 23, 2014

Implementation of Executive Action on Immigration

"I'm an executive order and I pretty much just happen! . . . And that's it!" Saturday Night Live's depiction of the legislative process vs executive action might be amusing (see below), but like many commentaries on the function of the US government, it misses a large portion of the story.  Executive orders may be simpler to enact than laws, but they face many of the same execution challenges as a new law would.  The vast bureaucratic cogs of what some describe as the deep state (the professional portion of the government which mostly doesn't change with elections) are the organizations which actually implement policies set forth in new laws or executive orders.

On November 20, President Obama announced a series of new executive orders to serve as a stopgap measure addressing the worst problems with the US immigration system until Congress can act on the issue, which many in both parties agree is a major priority.  These orders are intended to refocus immigration enforcement on removing undocumented immigrants with criminal records, while allowing those with family residing legally in the US temporary immigration protection, as well as increasing border security.  This would, for example, allow the children of US citizens who are not themselves citizens to stay in the US with their parents, increase resources for border control, and make it easier to collect taxes from undocumented immigrants.

The challenges associated with actually implementing these orders are highlighted on the page dedicated to them at the US Citizenship and Immigration Services (USCIS) site: "Important notice: These initiatives have not yet been implemented, and USCIS is not accepting any requests or applications at this time. Beware of anyone who offers to help you submit an application or a request for any of these actions before they are available. You could become a victim of an immigration scam."  Just because the President has issued the order, does not mean that it has been enacted yet (and, of course, don't be a sucker, there are plenty of scammers who will cheerfully oblige).

In order for these executive orders to be enacted, a number of organizations will have to implement procedures to carry them out.  Many of these will involve significant reshuffling of priorities.  USCIS and Immigration and Customs Enforcement (ICE) are sections of the Department of Homeland Security, and took over a number of functions from the former Immigration and Naturalization Service (which was part of the Department of Justice) when it was disbanded in 2003.  USCIS will have to develop procedures for undocumented immigrants to apply for waivers to be allowed to stay in the country, and conduct the background checks which President Obama stipulated in order for them to be eligible.  ICE will have to develop procedures to verify the waiver status of undocumented immigrants, as well as reshuffle its priorities in order to target for deportation different sectors of the population of undocumented immigrants--especially those with criminal records or who are members of gangs or organized crime.  This will likely change the hardware, software, and maybe even personnel needs of both organizations.  Developing the correct tools and training the right people to implement the new ruleset will take time and money, and divert the attention of both agencies from other tasks.  That diversion may be viewed as a feature not a flaw, but it will certainly change the function of the organizations.

In addition, President Obama's executive orders contained language to "fundamentally alter the way in which we marshal resources to the border."  This will involve hiring new personnel for both ICE and Customs and Border Protection (CBP), as well as strategically reevaluating how the resources of all organizations associated with border security are utilized and how they could be deployed more effectively.  This will not be a simple or fast process, but given that current practices are clearly inadequate, is a necessary one.

Throughout this process, policy is at risk of being altered or warped.  This is a symptom of the principal-agent problem, wherein agents empowered to make decisions on behalf of another entity (the principal) may choose to make decisions in the best interest of the agent rather than of the principal.  Bureaucratic priorities can often shape policy in ways that are not beneficial to the US, or fair to immigrants attempting to come here.  Every policy must be considered with this in mind--failure to do so is likely to result in inefficient or even perverse results.  In fact, many of the reforms included in the current executive orders seem to be addressing principal-agent related issues.  Importantly, these are that while immigration efforts have often targeted law-abiding undocumented immigrants, it is actually generally in the US's best interests for those people to be allowed to remain in the country.  Overall, they tend to be very economically productive individuals, many of whom are willing to work jobs that native born Americans are unlikely to want to do.  Refocusing immigration efforts to target criminals, while shoring up border security, will result in agents who better serve the principal--in this case the US.

The President, no matter his name or party, is an easy target for Saturday Night Live.  He's charismatic, interesting, and well known.  Bureaucrats in the Reagan Building are not nearly so interesting, but their function in carrying out policy is just as important as that of the politicians who make it.  Taking a closer look at the bureaucratic and organizational process is critical to understanding how US policy actually comes to be.

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