President Obama’s decision to move forward with a plan to unilaterally legalize approximately 5 million illegal immigrants is extralegal, but it is unlikely to be blocked on legal grounds. The Obama administration appears ready to expand existing deferred-action practices in order to legalize millions of illegal immigrants by the end of the summer, and the GOP is considering what to do about it.
Although every president tests the limits of executive authority, Obama’s initiative would be unusually forceful and unilateral. In 2012, the Obama administration implemented the Deferred Action for Childhood Arrivals program, which granted two-year reprieves from immigration enforcement to illegal aliens aged 30 or younger who had first arrived in the United States before the age of 16 and before June 15, 2007. The program also made such illegal immigrants eligible for work authorization. More than 642,000 people have had their requests for DACA accepted as of March 2014, according to U.S. Citizenship and Immigration Services. The proposed expansion of deferred action could include more than seven times as many people.
Jessica Vaughan, director of policy studies at the Center for Immigration Studies, tells National Review Online she expects the executive action will grant amnesty to family members — parents and siblings — of U.S. citizens and of any persons with legal status residing in the U.S. The president doesn’t have the authority to create a new green-card program on his own to offer these people permanent residency, so he’s decided to give people the next best thing, according to Vaughan.
“This is just a green card by another name,” she says. “It’s all of the benefits and privileges of legal residency without the approval of Congress.” The Obama administration will portray this as a prosecutorial-discretion program, she says, but it’s an amnesty that will give illegal immigrants the permission to live and work here while qualifying for driver’s licenses and taxpayer-funded benefits in many states. The distinction is important because executive branches — at the local, state and federal levels — are widely acknowledged to have broad discretion over how to deploy prosecutorial resources; but there is no such tradition of discretion on executive spending or the creation of new benefits and bureaucracies.
Hiroshi Motomura, a professor of law at UCLA, wrote a letter to the president in May 2012 signed by legal scholars across the country, which contained the legal basis for the DACA program.
“General authority for deferred action exists under Immigration and Nationality Act (INA) § 103(a), 8 U.S.C. § 103(a), which grants the Secretary of Homeland Security the authority to enforce the immigration laws,” Motomura wrote. “Though no statutes or regulations delineate deferred action in specific terms, the U.S. Supreme Court has made clear that decisions to initiate or terminate enforcement proceedings fall squarely within the authority of the Executive.”
Upon reading this argument, a GOP aide sent NRO an e-mail saying, “No serious person could accept that argument.” The aide says the statement attempts to give the president the power to strike down an entire law as if it never existed, and make new laws conferring benefits to people. Despite such action, Vaughan says, it may not be vulnerable to a legal challenge. “It’s most definitely contrary to the intent of the law and the spirit of the law and even the letter of the law,” she says. “But without someone to enforce that, the president can use it any way he sees fit.”
The president has several other options at his disposal by which he can attempt to avoid enforcing the law at our nation’s borders. He may choose to implement a parole-in-place program, by which the executive branch may parole any alien into the United States only on a case-by-case basis for “urgent humanitarian reasons” or “significant public benefit.” The president may instead choose to move forward with some sort of deferred-enforced-departure program, which Motomura described as a form of prosecutorial discretion that has been used in response to unstable conditions in various countries.
But in the case of such executive orders, Congress has the power to negate any executive order by changing the statute upon which the order is based or by refusing to fund the actions that result as part of the president’s executive order.
While Senate Democrats would likely block such action, as the Washington Examiner noted, Democrats may then appear to be obstructionists protecting the president’s lawless approach to immigration policy. Whatever political calculus the Obama administration makes regarding amnesty may have been signaled in a leaked 2010 memo obtained by the Washington Post. The memo listed the pros and cons of different executive actions the Obama administration could take regarding immigration policy. When it came time to evaluate the “Registration Program and Deferred Action for the Current Unauthorized Population or Selected Subsets,” the memo reported the negative consequences to include, “The Secretary w
eould [sic] face criticism that she [former Department of Homeland Security Secretary Janet Napolitano] is abdicating her charge to enforce the immigration laws. Internal complaints of this type from career DHS officers are likely and may also be used in the press to bolster the criticism.”
Another con from the memo’s evaluation of deferred action for millions of illegal immigrants: “A program that reaches the entire population targeted for legalization would represent use of deferred action on a scale far beyond its limited class-based uses in the past.” This suggests some bureaucrats acknowledge the president’s unprecedented power grab. One benefit the memo provided in favor of providing deferred action to illegal immigrants included, “A bold administrative program would transform the political landscape by
eliminating [sic] using administrative measures to sidestep the current state of Congressional gridlock and inertia.” The president’s advisers have also sought to turn the president’s lawlessness into an asset by painting Republicans as extremists who are intent on impeaching Obama.
If the president decides that these executive orders and actions do not satisfy his desire, he may choose to proceed with a presidential pardon. The president could not grant citizenship status to an illegal immigrant via a pardon, but it may mean the immigrants would be permitted to stay in America. P. S. Ruckman Jr., a political science professor at Rock Valley College and an expert on presidential pardons, tells NRO such a move would be “unprecedented” and he does not see any chance of its happening. Vaughan says she thinks the president may ultimately choose to amnesty around 2 million illegal immigrants, instead of the reported 5 to 6 million, as a sign of restraint.
— Ryan Lovelace is a William F. Buckley Fellow at the National Review Institute.