Outside the Beltway

Obama To Take New Executive Action On Immigration?

According to some reports, President Obama may be about to make an end run around Congressional inaction on immigration reform.

Doug Mataconis · Wednesday, July 30, 2014 · 16 comments

As Congress dithers on passing a bill to deal with the border crisis and the House makes exceedingly clear that it has no intention of acting on immigration of any kind before the midterm elections at least, and possibly not any time before the President is out of office, Talking Points Memo’s Erica Werner notes that the White House is contemplating broad executive action on the issue of immigration that will likely set up another confrontation with the Republicans in Congress:

Even as they grapple with an immigration crisis at the border, White House officials are making plans to act before November’s mid-term elections to grant work permits to potentially millions of immigrants who are in this country illegally, allowing them to stay in the United States without threat of deportation, according to advocates and lawmakers in touch with the administration.

Such a large-scale move on immigration could scramble election-year politics and lead some conservative Republicans to push for impeachment proceedings against President Barack Obama, a prospect White House officials have openly discussed.

(…)

White House officials led by Domestic Policy Council Director Cecilia Munoz and White House Counsel Neil Eggleston, along with Homeland Security Secretary Jeh Johnson, have been working to chart a plan on executive actions Obama could take, hosting frequent meetings with interest groups and listening to recommendations from immigration advocates, law enforcement officials, religious leaders, Hispanic lawmakers and others.

Advocates and lawmakers who were in separate meetings Friday said that administration officials are weighing a range of options including reforms to the deportation system and ways to grant relief from deportation to targeted populations in the country, likely by expanding Obama’s two-year-old directive that granted work permits to certain immigrants brought here illegally as youths. That program, called Deferred Action for Childhood Arrivals, or DACA, has been extended to more than 500,000 immigrants so far.

Advocates would like to see deferred action made available to anyone who would have been eligible for eventual citizenship under a comprehensive immigration bill the Senate passed last year, which would be around 9 million people. But Obama told them in a meeting a month ago to “right-size” expectations, even as he pledged to be aggressive in steps he does take.

That’s led advocates to focus on other populations Obama might address, including parents or legal guardians of U.S. citizen children (around 3.8 million people as of 2009, according to an analysis by Pew Research’s Hispanic Trends Project) and parents or legal guardians of DACA recipients (perhaps 500,000 to 1 million people, according to the Fair Immigration Reform Movement).

“Our parents deserve to live without the fear of deportation,” Maria Praeli, a 21-year-old from New Haven who came to the United States from Peru 16 years ago, said at a protest outside the White House on Monday. “It is time for the president to go big and to go bold.”

Another focus could be the potentially hundreds of thousands of people who might be eligible for green cards today if current law didn’t require them to leave the country for 10 years before applying for one.

Without knowing exactly what it is that the President might do here, it’s hard to evaluate whether or not the actions in question are something that is properly within his authority as President or whether they are an effort to improperly go around Congress to do something that ought to be the province of the legislature. As a general principle, of course, the President as chief law enforcement officer has some broad degree of discretion in the enforcement of laws such as the immigration laws. He has the authority, for example, to grant the kinds of administrative relief that he did last year for some children of illegal immigrants who were brought to the United States when they were younger by their parents. It’s worth noting, though, that the relief that was granted in that case is temporary and the “amnesty,” for lack of a better word at the moment, that was granted to this class of people under the Deferred Action For Childhood Arrivals program only lasts for two years and would expire if not renewed. While the deferrals will obviously be renewed as long as President Obama is in office, there is no guarantee that would be a permanent feature of the program. Moreover, the entire program could be ended by Congressional action, although any such bill passed by Congress would have to be signed into law by the President. If the President tries to enact some kind of more permanent reform via executive action, it could rest on far more dubious legal grounds, although Politico’s Josh Gerstein notes that there may not be much that Congress could do about it:

Lawyers are debating the legality of a series of immigration-related executive actions the White House is reportedly considering, but there’s broad agreement suing the president isn’t likely to work.

“The court route: I don’t see it,” said Jan Ting, a top immigration official under President George H.W. Bush who opposes Obama’s expected moves.

Legal experts see any challenge to the expected immigration policy changes headed for the same key roadblock facing House Speaker John Boehner’s planned suit over Obamacare implementation delays: finding a way to show the injury needed to press a case in the federal courts

“There isn’t really anyone who would be in a position to complain,” said Hiroshi Motomura, a University of California at Los Angeles law professor who favors several of the options Obama is considering.

The lack of a clear path to challenge the president’s expected moves to give more illegal immigrants work permits and relief from deportation seems certain to fuel howls from Obama critics that he’s as much an imperial president as his predecessor — who was often criticized by Obama and other Democrats for overflexing his presidential muscle.

Responding to inaction in the House on immigration reform, Obama has signaled to immigrants’ rights advocates that he plans to take significant new executive actions next month to overhaul the immigration system. They could range from reordering the priority list of deportation cases to dramatically expanding the “deferred action” program he initiated in 2012, which allows immigrants who entered the U.S. illegally as children to apply for a two-year deportation reprieve.

That could mean allowing millions of family members of so-called DREAM-ers to get work permits, or perhaps allowing giving work permits to even broader groups, such as undocumented immigrant parents of U.S. citizens or virtually everyone who’s not considered a high priority to deport.

“This notion of extending DACA [Deferred Action for Childhood Arrivals] to parents, who were the ones who consciously violated the law, strikes me as ridiculous,” said Ting, now a law professor at Temple University. Obama “has defaulted on his constitutional obligation to faithfully execute the laws.”

However, other experts say most lawyers in the field believe Obama has few restrictions on his ability to decide how and when the U.S. deports immigrants.

“There is, I think, a general consensus that his authority to take executive action is fairly wide as long as it is based on executive branch authority to use prosecutorial discretion to decide how people are treated who are subject to deportation,” said Doris Meissner, Immigration and Naturalization Service Commissioner under President Bill Clinton.

“He’s got a continuum of options from a fairly narrow reworking of deportation priorities all the way to a new program of some kind that would allow more numbers of people to apply for work permits of some kind,” she added.

Leaving aside the legal issues, though, it’s pretty easy to figure out what the political consequences of the kind of executive action being talked about right now would be. Just as has happened in response to the President’s actions with DACA and the various actions that the President has taken to extend deadlines or provide exemptions under the Affordable Care Act, it would lead to a profoundly negative reaction from the Republicans in Congress and from conservatives nationwide. Obviously, those parts of the GOP that are vehemently opposed to immigration reform and the idea of granting “amnesty” to people who are here illegally will be upset by these actions, as will those who have attacked the President over alleged Executive Branch overreach in recent years. If by chance the President takes this action prior to the midterm elections, which seems unlikely, it will become a political issue that the GOP will use in an effort to defeat incumbent Democratic Senators both in red states and in states such as Michigan, Oregon, and Iowa where many people have discounted the probability of Republican victory. If the action is taken after the election, then it is likely to lead to increased pressure on House leadership to “do something” about the President’s alleged abuses of power.

As I noted yesterday, while Republican leaders continue to dismiss the idea of impeaching the President, it remains to be seen whether they would be able to resist pressure from their base to go down this road if the political circumstances forced them into that position. If nothing else, a series of Executive Orders from the President that appear to be designed to enact immigration reform without Congressional action would seem to be perfectly suited to being the impetus for the series of events that could force the leadership’s hand on impeachment. At that point, the question would become whether or not Boehner, McCarthy, McConnell and the rest have the will and fortitude to resist the calls of the populist wing of their party as we head into what is likely to be the most vehemently partisan Presidential election since, well, the last one.