Federal Issues Update: More Executive Orders
Members of the House and Senate were on recess the week of February 20 in observance of the President’s Day holiday, but the Trump administration continued advancing the president’s domestic policy agenda via Executive Order this week. For starters, the Department of Homeland Security (DHS) released guidance memoranda implementing the president’s January 25, 2017 executive orders (EOs) on immigration.
The memoranda, signed by DHS Secretary John Kelly, rescind all previous executive-level immigration directives – with the exception of President Obama’s 2012 and 2014 guidance that deals with individuals who came to the U.S. as children and who are the parents of U.S. citizens or permanent residents. Aside from these particular individuals, the DHS directives enumerate the Trump administration’s plans for the “detection, apprehension, detention, and removal of aliens who have no lawful basis to enter or remain in the United States.”
The memorandum implementing the EO entitled “Enhancing Public Safety in the Interior of the United States” terminates the Priority Enforcement Program (PEP), which, according to the Trump administration, has failed to achieve its objectives and has hampered DHS’s enforcement of immigration laws. PEP, first implemented in 2014, was designed to enable the Department to work with state and local law enforcement to take custody of individuals who pose a danger to public safety before those individuals were released into communities.
Replacing PEP, effective immediately, is the Secure Communities program. Incidentally, Secure Communities, which preceded PEP, was abandoned by the Obama administration amid concerns from immigrants-rights groups that the program resulted in the deportation of non-criminals. The memorandum also directs federal authorities to expand the 287(g) program, which allows a state or local law enforcement entity to receive delegated authority for immigration enforcement within their jurisdictions. The memorandum directs DHS to include in the program all law enforcement agencies that request participation.
It should be noted that absent from the DHS memoranda is any reference to so-called “sanctuary jurisdictions.” While the aforementioned EO signals the administration’s intention to cut off federal funding for jurisdictions that refuse to share information with federal authorities regarding the immigration status of any individual, this week’s directives are silent on the issue. Subsequent memoranda from the Department of Justice will likely provide further detail on the administration’s enforcement action against jurisdictions that are not in compliance with federal information-sharing requirements.
In other developments, a draft executive order entitled “Protecting Taxpayer Resources by Ensuring our Immigration Laws Promote Accountability and Responsibility” would greatly expand the number of federal programs that fall under the definition of “public charge.” Pursuant to the draft EO, immigrants found likely to receive certain public benefits would be denied admission to the U.S., or, if already in the country and receiving public assistance, would be subject to potential deportation.
Specifically, the draft order would add the receipt of all means-tested benefits – including health programs (e.g., Medicaid, CHIP and public health services) – to the currently short list of cash benefits that are considered assistance for purposes of determining “public charge.” Also included on the list is the receipt of services under the Social Services Block Grant, which is often used to provide child or adult protective services. The draft EO also would restrict the Child Tax Credit for citizen children of undocumented parents and would create a set of federal reports from states and counties about immigrant and refugee use of public benefits.
It is unclear when the draft order will be finalized by the Trump White House.
Finally, expected in the coming days are executive orders that will dismantle the Obama administration’s Clean Power Plan, as well as instruct the Environmental Protection Agency and the U.S. Army Corps of Engineers to withdraw and rewrite the “Waters of the U.S.” (WOTUS) rule. Undoing the Obama-era regulations could take months and will likely result in legal challenges.
The WOTUS Rule, which expands the scope of the federal government’s regulatory power under the Clean Water Act, has been criticized by a host of stakeholders – including state and local governments and agricultural interests. Although the rule was finalized back in 2015, the Sixth Circuit Court of Appeals subsequently granted a nationwide stay of the rule.
Looking ahead, and while the Trump administration’s expected withdrawal of the rule would seem to moot a current Supreme Court case challenging the Sixth Circuit Court of Appeals’ jurisdiction to hear WOTUS challenges, legal experts have indicated that the case could be revived if and when the agencies ultimately issue a revised regulation.