In it, but not of it. TPM DC
Here are five important things to know about the announcement.
The cornerstone of Obama's executive action is a new "deferred action" program to let undocumented parents of U.S. citizens and lawful permanent residents temporarily live and work in the country, as long as they've resided here for at least 5 years and can show that their child was born before the date of Obama's announcement. This huge action covers more than 4 million people. Separately, Obama will expand his 2012 Deferred Action for Childhood Arrivals program, which currently covers people born after 1981 who came to the country before June 15, 2007 — the expanded program will scrap the age cap and move the cutoff date to January 1, 2010. It's expected to cover some 270,000 new so-called DREAMers.
Despite intense lobbying by immigrant-rights groups, the action will not cover parents of DREAMers, or DACA beneficiaries. A senior administration official said that after an exhaustive review of the White House's legal options, "we made a determination that the law essentially did not support that. ... By executive action he can only do so much."
This action is temporary, and can be reversed by the next president. "It is not a pathway to citizenship," a senior administration official stressed, saying that the administration will begin accepting applications in the spring (potentially sooner for the expanded DACA program). Each applicant will be required to pass a background check to receive what will be a three-year work authorization under both programs. They'll also have to pay taxes and stay on the right side of the law. Their reprieves and work permits are granted on the basis of the longstanding exercise of prosecutorial discretion, and can be revoked at any time at the discretion of the Secretary of Homeland Security.
Obama's executive actions will also require immigration officials to shift their enforcement priorities to target gang members, felons, suspected terrorists or those who are believed to pose national security threats. These people will be listed as the highest priority for deportation, as will anybody who enters the country after January 1, 2014. That's good news for people who entered before that date and haven't committed crimes or serious misdemeanors. They won't be able to apply for formal protection from deportation, but administration officials say they won't be targets for removal.
"We're going to be focused on deporting felons, not families," one senior administration official said, adding that the White House will be "aggressive" in communicating to the rest of the world that people who come to the U.S. on or after January 1, 2014 will be ineligible for any relief.
Speaker of the House John Boehner, R-Ohio. (AP Photo/J. Scott Applewhite)
Republicans are gearing up to mount a massive backlash that could include a government shutdown standoff or a lawsuit. The conservative base is apoplectic about Obama's actions, and rank-and-file GOP lawmakers are floating everything from impeachment to jailing the president. House Speaker John Boehner's (R-OH) office dubbed him "Emperor Obama" ahead of the announcement. Incoming Senate Majority Leader Mitch McConnell (R-KY) has vowed that "Congress will act" to counteract Obama. Many congressional Republicans — led by Sen. Jeff Sessions (AL), Sen Ted Cruz (TX) and more than 50 House members — are pushing to use the budget process to prohibit the federal government from spending any money to give work permits to undocumented immigrants.
Obama officials admit Congress may have the power to do that, but they caution that he wouldn't sign such a bill. "I'm sure they're going to spend a lot of energy thinking of creative ways to stop us, either through funding bills or other," one official said. "But either way it's a largely irrelevant point because that will, in and of itself, be something the president would veto."
The politics of Obama's move are explosive and could reshape the 2016 presidential race. The reactions stand to sharpen the contrast between Democrats and Republicans, which is particularly salient among Hispanics, who broadly support immigration relief. Pledging to overturn Obama's actions could become a litmus test in the GOP primary, if Sen. Ted Cruz (R-TX) or other candidates demand as much. That could make life miserable for the eventual Republican nominee in the general election, where Hispanic voters, who helped give Obama two terms in office, are likely to again play an important role. Meanwhile, in a sign that Democratic frontrunner Hillary Clinton may be on board, her husband and former President Bill Clinton said Wednesday that Obama is on "pretty firm legal footing" to act unilaterally on immigration. House and Senate Democratic leaders have likewise vowed to strongly support the president's actions. One politically perilous scenario for Obama, however, is if congressional Democrats start defecting and elevate the pressure on the White House to reconsider.
A lawsuit against Obama's actions has little chance of success. At least five Republican governors and Boehner have left the door open to suing Obama for what they say is an illegal move. As many of them hasten to point out, Obama himself has expressed a narrower view of the executive authority he is now asserting. A lawsuit likely wouldn't be settled until Obama is out of office, but legal precedent gives the president the advantage in any event. Former presidents, including Ronald Reagan and George H. W. Bush, used executive action to defer the deportations of certain categories of immigrants and give them work permits. In 1990, Bush shielded some 40 percent of the undocumented population from deportation; Obama's programs will apply to a similar fraction of today's unlawful immigrants. As recently as 2012, the Supreme Court affirmed the wide latitude that immigration officials have in deciding who to target for deportation.
"Removal is a civil matter," wrote Justice Anthony Kennedy in Arizona v. U.S., joined by four other justices, "and one of its principal features is the broad discretion exercised by immigration officials, who must decide whether to pursue removal at all."