Can President Barack Obama temporarily legalize 5 million undocumented immigrants by himself?
That question has sparked a heated debate as the White House ponders the legal questions surrounding an unprecedented executive action on immigration that it says it will unveil by the end of this summer. The political implications are explosive as conservative Republicans are already floating impeachment of Obama if he unilaterally grants relief to millions of undocumented immigrants.
So, how much power does Obama have in this area?
Experts agree that the president has wide discretion to decide which migrants to target for deportation under the law enforcement theory of prosecutorial discretion. There are roughly 11 million immigrants in the U.S. illegally and officials have to prioritize which ones to remove. The Supreme Court reaffirmed that wide latitude in the 2012 ruling Arizona v. US, in which the justices said key provisions of Arizona’s strict immigration law ran afoul of federal supremacy in the area.
“Removal is a civil matter, and one of its principal features is the broad discretion exercised by immigration officials, who must decide whether to pursue removal at all,” wrote Justice Anthony Kennedy in the majority decision, joined by four other justices.
The Center for American Progress, an influential liberal think tank, argued in a July 2014 brief: “Even in the civil context, the Supreme Court has made clear that ‘an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.’ The Court has repeatedly affirmed the long-standing principle that the executive branch has virtually unfettered discretion in deciding how and whether to enforce the law against individuals.”
But legal experts don’t agree on the extent to which a president can formally grant reprieve and work permits to broad categories of immigrants. His June 2012 “deferred action” program, known as DACA, did that for some 553,000 qualified young people brought to the U.S. illegally. Administration officials have anonymously leaked that they’re considering a similar action for up to 5 million immigrants who are also a low priority for removal (though they publicly insist no decisions have been made yet).
Supporters of expanding deferred action point out that the concept existed before DACA: previous deferred action grants for humanitarian cases permitted recipients to obtain work authorization for the period of the deferral, with the government reserving the right to take away that status at its discretion. Therefore it wouldn’t be a brand new category; it’d expand an existing category.
“Longstanding law already allows for individuals who are granted deferred action to gain work authorization,” John Sandweg, former acting general counsel at the Department of Homeland Security from 2012 to 2013, told the Washington Post’s Greg Sargent. “There was a longstanding, preexisting regulation that governs who gets work authorization; deferred action recipients were included in that regulation — a decision that was made long before this administration.”
Under this theory, Obama could say it’s simply a formalization of decisions made under his power of prosecutorial discretion — the government decides not to target certain people and gives them a document saying as much.
“They can’t do things like grant permanent legal status because how you get permanent legal status is in statute already,” said Bob Sakaniwa, senior associate director at the American Immigration Lawyers Association. “So there are things that are less than permanent legal status in this area that the president can consider.”
The problems emerge when considering the scope of such an action. Experts in this area say there’s no black-and-white answer to exactly how many immigrants a president can defer action for before it becomes an abuse of his authority. Conservatives charge that DACA was pushing the boundaries at best, and outright illegal at worst, therefore expanding it would be “presidential caesarism,” as New York Times columnist Ross Douthat puts it.
“There’s no question that past presidents have enjoyed considerable discretion in the immigration area. However, this president’s past actions [i.e. DACA] raise very troubling questions under the separation of powers,” said Jonathan Turley, a professor at George Washington University Law School. “The suggestion that the president may alter the status of millions of undocumented individuals would magnify those concerns. … What President Obama is contemplating is quite different in magnitude from prior actions.”
A different legal basis that has been floated is for the president to use his pardon power under the Constitution to grant amnesty to certain unauthorized immigrants. But that would fall outside the confines of existing precedent in the area and there’s no indication the administration is considering it.
Although a future president would unquestionably have the authority to reverse DACA and other executive actions, the politics would make that difficult. Despite a push by conservatives to sue to reverse DACA, Republicans opted not to do so in their lawsuit against the president, a sign that they’re wary of alienating Latino voters, who strongly support immigration relief. As Douthat concedes, “the politics of stripping millions of people of legal status will be too awful for a Republican Party facing an increasingly Hispanic electorate to contemplate.”
The White House is gearing up for an intense political fight. Obama’s senior adviser Dan Pfeiffer recently predicted that the president’s upcoming action on immigration will “certainly up the likelihood that [Republicans] would contemplate impeachment.”