Also view our blog content on executive action here.
As we await an immigration announcement from the Obama Administration, we’ve compiled a list of the top legal, political, and policy arguments for President Obama using his executive authority to protect immigrants who would qualify for the Senate immigration bill from deportation.
EDITORIALS AND OPINIONS ABOUT PRESIDENT OBAMA’S EXECUTIVE AUTHORITY ON IMMIGRATION
Bloomberg Editorial, “Obama’s Midterm Surprise: Immigration” –“A major executive action liberalizing strictures on undocumented immigrants with lengthy U.S. residency would change the midterm dynamic. Experience suggests that the reaction of Representative Steve King and other Republican nativists would not be subtle. And Republican leaders, including McConnell and House Speaker John Boehner, would add to the general clamor. Conflict over immigration would become much louder and more heated, and the issue might well dominate some campaigns. The conservative base is already motivated; the threat of liberalized immigration policy seems unlikely to add greatly to Republican vote tallies. But in some states with tough Senate races — Georgia and North Carolina, for example — a knock-down national fight over immigration might impel more Hispanics and Asians to vote, while heightened attacks on Obama could rally more black voters, whose devotion to the president was tested, and reconfirmed, in 2012. In a tight race, Hispanics and Asians might make a measurable difference; black voters could make a decisive one. The biggest challenge facing Democratic candidates in 2014 is arguably not Obama fatigue, disgust with Washington or frustration with an economy that simply does not reward unskilled work. It’s the concentration of Senate races in conservative states and the drop-off of traditional Democratic constituencies, which typically fail to vote in large numbers in midterm elections. Not every Democratic voter would be comfortable with amnesty for more undocumented immigrants. Some genuinely independent voters might be turned off as well. But a high-stakes, high-drama pre-election fight between Obama and Republicans might motivate more Democrats to vote while promoting immigration policy that Obama prefers to the status quo.”
La Opinión Editorial, “It is time to take action” — Inevitably, executive orders will stir up Republican criticism toward the White House for what they call an “imperial presidency.” This is a vicious cycle that begins with an obstructionist Congress—even worse now in an election year—leading to presidential proposals that force the president to act on his own through executive orders, which lead to accusations that he is evading Congress. What matters is for there to truly be concrete executive measures that stop, at least, some categories of deportations.Obama took the first step, warning the public about measures that must be taken given that the House of Representatives gave up on fulfilling its work of negotiating and legislating. We hope and trust that these are not empty threats from the president. The White House, better than anyone, knows that for a long time, people in Washington have toyed with the hopes of millions of immigrants.”
La Opinión Editorial, “It’s time for action”—“It’s time for action. It’s time to do the right thing. The majority of Americans think that it is necessary to overhaul immigration laws in a way that recognizes the complexity of this issue, and not just deport people according to the House of Representatives’ immigration agenda…This is a key moment to demonstrate presidential leadership, knowing that in the short term, there may be a political price to pay. However, showing courage by doing the right thing will, in addition to benefiting the nation, yield political rewards in the long and medium term, both for the Democrats and for President Obama’s legacy.”
New York Times Editorial, “Mr. Obama, Go Big on Immigration” – “Republicans will howl over Mr. Obama’s solo actions. Let them. Let the party pay a heavy price among Latino and Asian voters for failing to tame its nativist wing, whose only idea for immigration is a fantasy of an airtight border and mass expulsions. Most Americans find the Republicans’ enforcement obsession unconvincing; polls support the moderation and legalization that Mr. Obama and Democrats have fought for…As the border crisis plays out, public support for legalization will be tested. But Mr. Obama can ease fears if he acts on the belief that millions who are here are a benefit to the country and deserve a chance to stay. Through cynical abdication, Republicans wasted a precious chance to fix immigration for the 21st century. That game is over. The president has moved on. It’s about time.”
New York Times Editorial, “America’s Test at the Border” – “It would be good to see Mr. Obama join other Democrats and Republicans in making the moral and legal case for compassionate action, to lead a backlash against the nativist backlash. And while he’s at it, he can reaffirm his commitment to protecting, through executive action this year, millions of immigrants who have been here for years, who deserve the chance to legalize that Congress has refused them. He made this vow before the border crisis exploded; we could all benefit from hearing him repeat it.”
New York Times Editorial “Congress, Unhinged on Immigration” – “Congressional nihilism has created a vacuum. Now it’s President Obama’s job to fill it, to keep his promise to end the border crisis and find ways to redirect immigration enforcement and protect possibly millions of families from unjust deportation.”
New York TimesEditorial, “Mr. Obama, Your Move”: “If Mr. Obama acts, as he should, and the right wing explodes, it will be worth taking time to consider what Senator Jeff Sessions, Representative Steve King and their hard-core colleagues and allies would have Mr. Obama do. For them, the right number of unauthorized immigrants to welcome is zero; the right time is never. They would let the system rot in place, to maintain the fiction that the country can deport its way to lawfulness. Their dishonesty is repellent, as is their blindness to the lawless status quo, and to the cruelty of denying the hopes of millions whose labor is welcomed but whose humanity is not. Mr. Obama’s critics in Congress belong to a branch of government that has chosen to do nothing constructive about immigration — not even to resolve this summer’s crisis of migrant children at the border, which they looked at and punted on, before going on vacation. This is, after all, an election year. They have abandoned a difficult job to the care of Mr. Obama. They are in no position to complain when he does it.”
New York Times Editorial, “Fixing Immigration in the Field”—“ …get-tough immigration enforcement has in many ways passed the limits of usefulness and good sense. Mr. Obama’s recent directive to the Homeland Security secretary to review the enforcement of immigration laws and make them “more humane” embodies that belief. Those words are welcome, coming from the top. But they have to find a way to reach the bottom, where immigrants, police officers and sheriffs live.”
The Economist, “The Threat to the Rule of Law”: “In essence, there are three kinds of costs to an enforcement-only immigration policy. One is money. Another is the mounting security restrictions of an identity-monitoring police state…The third is the cruelty which that state must inflict on the people it deports, who are overwhelmingly decent, ambitious, hard-working people striving for a better life for themselves and their children. Are the American people interested in paying that money, complying with that police state, or inflicting that level of cruelty on otherwise upstanding immigrants? Some right-wing Americans may be willing to do so, but most Americans have consistently shown they aren’t. Given all this, America’s 11.5m undocumented immigrants aren’t going anywhere. The Republican inability to articulate any coherent immigration policy other than ‘deport them all’ amounts to a preference for fantasy over reality, rather than engaging in the messy job of making policy for the real world. America’s tolerance of a situation where over 10m of its residents are living here illegally is indeed a threat to the rule of law, and Barack Obama would not be doing the rule of law a service by simply maintaining status-quo policies. The country needs to adjust its immigration policies to fit reality, and if we want that to happen through legislation, the Republicans who control the House need to start governing again.”
POLITICAL ARGUMENTS FOR PRESIDENT OBAMA TO TAKE EXECUTIVE ACTION ON IMMIGRATION
Brian Beutler of the New Republic, “Boehner’s Anti-Obama Lawsuit Could Seal the GOP’s Coffin with Latinos” – “John Boehner would never cop to it, but his pending lawsuit against President Obama will be the final word on whether the GOP is the party of maximum deportations, including of immigrants eligible for the Obama administration’s Deferred Action for Childhood Arrivals directive—the group of upstanding undocumented immigrants who were brought to this country when they were children known as ‘Dreamers.’ Boehner will either include the DACA program among his list of the president’s supposedly illegal executive actions, and thus cement his party’s standing as one that represents the reactionary anti-immigrant minority in the country; or he’ll leave DACA out, giving tacit consent to the program and infuriating the anti-immigrant faction of his own conference.…Last year, House Republicans passed a bill that would defund DACA. Leaving it out of the lawsuit would run at odds with all of the GOP’s past actions. But including it—suing the president to deport Dreamers—would doom the party’s already floundering efforts to rehabilitate its standing in immigrant communities.”
Kevin Drum of Mother Jones, “John Boehner May Plan to Sue Obama Over Immigration” – “It [DACA] was a very popular action with the rest of the country. It was also, needless to say, very popular with Hispanics, a demographic group that Republicans covet. And legally, this puts Boehner on tricky ground too. Presidents have pretty broad authority to decide federal law-enforcement and prosecutorial priorities, so Obama will be able to make a pretty good case for himself. It’s not a slam-dunk case, and it’s certainly possible he could lose. But he sure seems to be on more solid ground than with the Obamacare mandate delays…we’re still in the dark about what exactly Boehner plans to sue Obama over. Mini-DREAM sure seems like a loser to me, though. Do Republicans really want to put a final nail in the coffin of their efforts to expand their reach in the Hispanic community? This would do it.”
Paul Waldman of Washington Post, “Obama sticks his thumb in Republicans’ eyes on immigration” — “And since Democrats have worked just as hard to convince the public that Republicans are insanely obstructionist as Republicans have to convince the public that Obama is a tyrant, the president’s response isn’t hard to explain to people; they understand by now that Republicans are opposed to passing immigration reform. So the places where Republicans have been the most recalcitrant are those where Obama is most likely to be emboldened to move aggressively…Boehner and other national leaders want to pass reform in order to convince Hispanic voters that the Republican party is not hostile toward them. But individual Republican members of the House, most of whom come from safely conservative districts, have no interest in comprehensive reform, or anything that goes beyond building more fences and hiring more border patrol agents. So if he’s going to force a confrontation with the opposition, this is as good an issue to do it on as any.”
Democratic Pollster Celinda Lake to The Hill — “It would help with Latino voters and we’re in desperate need of higher turnout among Latino voters. Right now they could say, ‘Nobody cares about us, nobody is doing anything for us – either party.”
Eugene Robinson of Washington Post, “Republicans are absent on immigration reform” – “The Republican Party’s paralysis on immigration is so complete — and so utterly irresponsible — that President Obama has no choice but to act on his own. Obama must follow the Gipper’s sterling example. The GOP needs to get on board or get out of the way.”
Greg Sargent of Washington Post “Obama warns GOP- I’m acting alone on immigration” – “It is precisely because Republicans won’t move out of their comfort zone on immigration — where the only response to the immigration crisis they can entertain is further militarizing of the border and expedited/expanded deportations — that Obama is now going to resort to more action on his own. If Republicans had passed immigration reform that included some form of legal status for the 11 million, it would have wiped away the need for Obama’s deferred-deportation program and we wouldn’t even be talking about expanding it, meaning no need for Republicans to fear more Obummer Lawlessness. Reform would have spent more on border security and helped unclog the courts, speeding the removal of arriving migrants — which Republicans support. If it had passed — or if Republicans gave him the money he’s asked for to deal with the current crisis — we would not be talking about him acting alone to shift more resources from interior enforcement to the border, either. No question, the politics of Obama’s coming executive action are dicey for Democrats. But Dems can bolster their position by contrasting unilateral problem solving with GOP inaction on the border — including the fact that they would not act because they want ever more deportations from the interior — and on immigration reform in general.”
Jonathan Weisman of the New York Times, “On Immigration, G.O.P. Starts to Embrace Tea Party”—As Weisman notes, the recent House Republican votes in favor of ending DACA and fast-tracking the deportation of Central American children fleeing violence was, to the White House and other observers, “potent evidence that Congress could not be a partner on the pressing, delicate policy decisions to come. A legislative year in which Speaker John A. Boehner of Ohio set out to publicly marginalize the more vocal right-wing members of his conference ended with them emboldened, and with new leaders ready to bring the right back into the fold.”
LEGAL ARGUMENTS — WHY OBAMA DOES HAVE THE POWER TO TAKE EXECUTIVE ACTION ON IMMIGRATION
Doris Meissner, Immigration and Naturalization Service Commissioner under President Bill Clinton to Politico — “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. 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.” Doris Meissner Immigration and Naturalization Service Commissioner under President Bill Clinton , to Politico–“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.”
Alicia A. Caldwell of Associated Press, “Obama has room to maneuver on immigration changes” – “What can President Barack Obama actually do without Congress to change U.S. immigration policies? A lot, it turns out. There are some limits under federal law, and anything the White House ultimately decides to do may be challenged in court as unconstitutional. But leading legal experts say the White House almost certainly could delay indefinitely efforts to deport millions of immigrants already in the U.S. illegally, and it could give them official work permits that would allow them to legally find jobs, obtain driver’s licenses and pay income taxes.”
Alex Altman of Time “Obama Eyes Major Immigration Move” – “Obama has a broad menu of options at his disposal, but there are two major sets of changes he can order. The first is to provide affirmative relief from deportation to one or more groups of people… The most aggressive option in this category would be expanding deferred action to anyone who could have gained legal status under the bipartisan bill that passed the Senate in June 2013… But even more modest steps could provide relief to a population numbering in the seven figures.”
Stephen Yale-Loehr, of Cornell University Law School, to Time– “As a purely legal matter, the President does have wide discretion when it comes to immigration…Just as DACA was within the purview of the president’s executive authority on immigration, so too would expanding DACA fall within the president’s inherent immigration authority.”
Michael Wishnie, of Yale Law School, to The New Republic – “I think there’s little serious question that the administration has broad discretion in almost every aspect of the deportation machine.”
Hiroshi Motomura, of the UCLA School of Law, to The New Republic – “He would reach political constraints long before he reaches legal ones.”
Peter Spiro, Law Professor at Temple University, to the New York Times “Presidents have pretty much complete discretion when it comes to enforcing criminal and other statutory regimes…President Obama can’t start handing out green cards. Short of that, from a legal perspective, there are no serious constitutional or other legal constraints that apply here.”
Margaret Stock, a Republican immigration lawyer and a Federalist Society member, to Washington Examiner columnist Shikha Dalmia: “The Immigration and Nationality Act and other laws are chock-full of huge grants of statutory authority to the president…Congress gave the president all these powers, and now they are upset because he wants to use them. Other presidents have used the same authority in the past without an outcry.”
David Leopold, former President of the American Immigration Lawyers Association (AILA), in an opinion piece, “Obama well within his authority on deportations,” in The Hill: “Critics like to say that the availability of employment authorization or the use of forms and fees pushes the DACA process or its expansion over the blurry line from lawful discretion to executive lawlessness. But they conveniently forget (or are not aware) that the president’s authority to authorize employment of immigrants is long-standing and already well-established in the law. The regulation that grants work authorization to immigrants granted deferred action predates DACA and applies to many other categories of people granted deferred action, such as abused women, hurricane victims, and refugees. The president’s authority to grant work status long precedes DACA, and while it does apply to DACA and would apply to its expansion, it is not an outgrowth of either…Those who challenge President Obama’s authority to act on his own to limit deportations fail to make the case that DACA or its expansion is such a dramatic departure from the Morton Memo (or other universally accepted forms of prosecutorial discretion) that it constitutes the naked power grab they claim. It’s not enough that it looks different, it must be different; significantly different from what is accepted as lawful discretion. But it isn’t significantly different. In other words, it’s legal.”
Eric Posner, a University of Chicago law professor, writes legal analysis in Slate titled, “Yes, Obama Can Stop Millions of Deportations”–“The president’s authority over this arena [immigration] is even greater than his authority over other areas of the law. For decades, presidents of both parties have deferred legal action against millions of people who entered the country unlawfully. As the immigration law experts Adam Cox of New York University School of Law and Cristina Rodriguez of Yale Law School have described in a paper, this has been going on at least since the 1940s … Congress’ decision not to act is just that—it’s not a new law. Thus, the president has properly relied on existing law, which takes us back, once again, to his authority to deport, not deport, or do anything in between. Obama can’t infer anything from Congress’ failure to act. The noisy complaints of a bunch of House Republicans possess no legal status whatsoever. If President Obama is a latter-day Caesar, intent on overthrowing the Republic and establishing a dictatorship, he has a ways to go. It’s wishful thinking, on the part of Obama’s critics, to argue that it’s unconstitutional for the president to shift immigration policy by changing enforcement priorities. But as the original Caesar said, ‘Men willingly believe what they wish to be true.’”
POLICY ARGUMENTS FOR EXECUTIVE ACTION ON IMMIGRATION
Ed Kilgore of Washington Monthly, “Why DACA Isn’t An Unconstitutional ‘Power Grab’”– “The most important thing to understand is the vast gap between the number of undocumented people in this country and the federal government’s resources for detecting, arresting, prosecuting and deporting them. ‘Prosecutorial discretion’ is not simply a convenience, it’s essential. DACA guides that discretion, and so would any DACA expansion. Beneficiaries, existing and prospective, do not receive any formal ‘legalization,’ but simply a temporary assurance enabling them to function and to work. And any such assurance could be instantly rescinded, by this or future presidents…Even a very large expansion would leave many millions of the undocumented subject to prosecution and deportation far beyond the resources of the federal government. Discretion would still have to be used. Unless the claim is that it’s necessary to keep millions of people in perpetual suspense so that are more likely to ‘self-deport,’ leaving the status quo in place is a policy decision just like any that Obama might make. His congressional critics could, of course, get serious about appropriating the many tens of billions of dollars that a universal or near-universal deportation stance would require. But they haven’t, have they? Action or inaction by Obama in the absence of congressional activity is a policy decision with very large implications. He cannot escape it, and the status quo is hardly managable, as we supposedly all agree.”
Brian Beutler of The New Republic, “Claiming ‘Obama Is Caesar’ Is Sexier Than Saying ‘Steve King Is Right’”– Beutler deconstructs some of the conservative arguments against potential executive action, especially New York Times columnist Ross Douthat’s stated objections, and makes an important distinction between norms and legal authorities. Beutler writes, “If it is legal, then Douthat must retreat to his procedural objection—that, legal or not, protecting up to half the undocumented population from deportation would constitute a dangerous erosion of norms. But if upholding norms is his concern, then he can’t just tiptoe away from the collapsed norms that created the foundation for broad deportation relief. Congress could address the over-reach problem either by passing immigration reform, or by explicitly forbidding programs like DACA. To the dismay of Democrats, Congress won’t do the former. To the dismay of Representative Steve King and other House Republicans, Congress won’t do the latter, either. But that just means Congress is leaving the matter in the president’s hands. Clearly Douthat would prefer it if Congress tied those hands. But a column urging the Senate to pass Steve King’s plan to end DACA wouldn’t have been as tantalizing as one warning that the specter of Caesarism is haunting America.”
Brian Beutler of the New Republic, “The Liberal Fear of Obama’s Executive Action Is Irrational”– “Congress gave Obama the discretion he’s planning to use and Congress can take it away. Congress won’t do that, though, just like Congress hasn’t created a pathway to citizenship for eleven million immigrants currently living in the country without authorization. At least not yet. I’m not sure how we get from this impasse to the conclusion that Obama’s establishing a uniquely troublesome norm on purely procedural grounds. By what standard is the broad but legitimate use of enforcement discretion a categorically worse violation of political norms than capricious imposition of the Hastert rule? Is there a number of deferred action beneficiaries past which executive action loses its legitimacy and becomes a dangerous norm violation? I don’t think you can get there without trespassing into substance and politics. And substantively I think the arguments for deferred action are much stronger—morally and practically—than the status quo.”
Brian Beutler of the New Republic, “This Letter Shows the GOP Once Sympathized With Immigrants Facing Deportation”—“ In 1996, the last time Congress passed a big package of immigration reforms, a class of immigrants with deep roots in the United States—some authorized, most not—became collateral damage. They stood to be kicked out of the country forever, and sent abroad to strange lands…Adopted children who were brought to the country at a young age, legalized but never naturalized, and who went on to commit relatively minor infractions, which, for purposes of the 1996 law, amounted to “aggravated felonies” requiring their deportation. The episode resurfaced briefly in 2011, when Republican Representative Lamar Smith, then chairman of the House Judiciary Committee, introduced legislation to dramatically limit President Barack Obama’s discretion over immigration policy. In response, Democrats dredged up a letter Smith and other congressmen sent to Attorney General Janet Reno in 1999, asking her to intervene on behalf those facing unintended deportation. They sent it to reporters, to nail Smith for hypocrisy, and scored a direct hit…”
American Bridge research memo, “Executive Actions Speak Louder than Words”– American Bridge’s new memo offers a detailed overview of past executive actions, including a look at immigration executive actions taken since 1987 by Presidents Ronald Reagan, George H. W. Bush, Bill Clinton, and George W. Bush. As the memo’s introduction notes, “The inflammatory rhetoric of the GOP, including talk of lawsuits and impeachment, would have you believe that Obama is running roughshod over the Constitution, but that’s simply not the case. President Obama has signed fewer executive orders than any president since the 19th century, and multiple Republican presidents have explicitly used executive action to address immigration issues.”
Matthew Yglesias of Vox, “3 times presidents unilaterally suspended immigration enforcement”—“A useful 2013 Congressional Research Service document establishes that legally speaking, the president has fairly wide latitude here. Specific historical precedents in this area are quite varied as well. The Clinton administration, for example, seems to have quietly but drastically scaled back INS raids on employers in the late-1990s after members of Congress — including quite conservative ones — complained about difficulties immigration enforcement was creating for business. But here are three occasions in which presidents formally suspended aspects of immigration enforcement in pursuit of foreign policy or economic goals. They are all pretty different from what Obama appears to be contemplating, but also pretty different from each other — illustrating that administrations have always used their discretionary authority in a range of ways.” Jorge Ramos of Univision, “What the President Can (And Cannot) Do”—“ So, no, presidents are not all-powerful, and Obama is no exception. Many of his campaign promises about hope and change – including his pledge to bring an immigration bill to Congress during his first year in office – have gone unfulfilled. And he has broken up thousands of families by deporting almost 2 million people during his presidency. But now Obama is looking for other ways to help immigrants, and he’s considering acting alone. That’s certainly a welcome development. The president’s political opponents will, of course, claim that he lacks the constitutional authority to extend such protections to undocumented immigrants. Some have even argued that an executive order is an abuse of power for which Obama should be removed from office altogether. And no doubt others will predict a new crisis at the border should Obama dare to take executive action. But what we need right now is for somebody, anybody, to be willing to do something. And while presidents may have less power than we imagine, they have more power than the rest of us. So use it wisely, and with courage.”
