Say Congress fails to pass an immigration-reform bill. Could President Obama use his executive powers to effectively legalize the 11 million undocumented immigrants who are already in the United States?
Sen. Marco Rubio thinks so. He warned House Republicans that if they don't pass a bill, Obama will act: "I believe that this president will be tempted, if nothing happens in Congress," Rubio said, "to issue an executive order as he did for the Dream Act kids a year ago, where he basically legalizes 11 million people by the sign of a pen."
It's not just Rubio. Immigration reformers have been quietly discussing this possibility as a "Plan B" if the bill dies. (The White House, for its part, has shown no sign of contemplating any such move.)
So what could Obama actually do for illegal immigrants on his own? A bit, though not as much as Rubio suggests. In 2012, the administration was able to stop the deportation of hundreds of thousands of undocumented youths under a deferred-action program. And Obama could, in theory, expand that program somewhat, allowing even more current immigrants to work legally in the United States without fear of getting deported.
But, legal experts say, it would be extremely difficult to expand this program to cover all (or even most) of the country's 11 million undocumented immigrants. And Obama only has the power to defer deportation — he can't "legalize" immigrants on his own. That's a key distinction here.
What Obama did back in 2012: DACA
In June of 2012, Obama signed a memo creating the Deferred Action for Childhood Arrivals (DACA) program. This is the program Rubio was referring to.
The DACA program applies to any undocumented immigrant aged 16 to 31 who was brought to the United States as a child, has either graduated from high school or is currently enrolled in school, and doesn't have a criminal record. The government basically promises not to deport these youths for two years and allows them to work legally in the United States. They don't get permanent residency or a path to U.S. citizenship, however — as they would have if Congress had passed the Dream Act.
As of June, the administration had received more than 550,000 applications for DACA and approved about 72 percent of them. There are another 350,000 or so youths in the country who likely qualify but either don't know about the program or can't pay the $465 application fee.
The Obama administration has defended DACA as a way of rationalizing its ongoing deportation policies. After all, there are 11 million undocumented immigrants currently in the United States, and Immigrations and Customs Enforcement has said it only has the resources to deport about 400,000 of them per year. Someone has to be at the bottom of the list. DACA was a way of formalizing those priorities. The "Dream Act kids" are officially at the bottom of the list.
But there are limits to how far Obama could expand deferred-action
The legal rationale for the DACA program was outlined in a letter (pdf) drafted last year by UCLA law professor Hiroshi Motomura and co-signed by nearly 100 top legal scholars around the country. In an interview, Motomura told me that Obama could conceivably expand that program, but there are limits to how far he can go.
"Here's how I think about it. If the president can make a list to prioritize who should be deported first, then I think it’s clear that he can give people at the bottom of that list a piece of paper saying you’re at the bottom," Motomura says. "That's how I think about DACA. It's clearly within his discretionary power. But if he did this for every single immigrant, he would no longer be exercising his discretion. That would be problematic."
That means — and again, this is all just in theory — Obama could extend promises of deferred deportation to some additional groups of illegal immigrants. He could try to extend it to domestic-violence victims, say. Or to workers who are bringing civil rights or labor-violation claims. Or to those with disabled children. It's possible that could cover another couple million undocumented immigrants. But he can't extend deferral to everyone.
"There's certainly room for adjustment, but not anything sweeping," says David A. Martin, a law professor at the University of Virginia and the principal deputy general counsel of the Department of Homeland Security in 2009 and 2010. "The justifications for DACA made clear that this is not a situation where the president can reduce overall enforcement of immigration laws. He can just redirect it in certain ways."
Granted, it might be difficult for anyone to sue to stop Obama if he did expand the deferred-action program. A case brought by Immigration and Customs Enforcement workers challenging DACA was recently dismissed in a federal district court in Dallas for jurisdictional reasons.
But Martin doesn't think this matters. "The administration has taken the position that you must make a good-faith effort to spend the enforcement resources that Congress has provided," he says.
Deferred-action is not legalization
There are also limits on what deferred-action can do. DACA doesn't give anyone permanent residency — the way the DREAM Act would have. It only gives them a two-year reprieve from deportation and the ability to work in the country during that time.
"It puts people in a kind of limbo," says Motomura. "The immigrants aren't on a path to permanence, their status could be revoked at any time, and they have few legal rights. If someone applies for DACA and gets rejected, there's nothing they can do. Whereas you do have legal rights if you qualify for a green card." That's one reason why many reformers would greatly prefer a bill from Congress that actually put undocumented immigrants on a path to citizenship.
Critics of DACA, however, argue that the program is actually more beneficial to immigrants than reformers think — and that the status it confers could end up being permanent. "As you might have guessed, no one has ever been sent home because his 'temporary' protected status expired," writes anti-immigration activist Mark Krikorian. "No one."
The politics of deferred action are also tricky
So far, we've just been talking about the legality of an expanded deferred-action program. Whether Obama would actually do this in practice is another question.
In a leaked 2010 memo (pdf) from the Department of Homeland Security, officials actually considered and rejected the idea. The memo noted that a massive deferred-action program would have an enormous number of downsides. For instance: "The Secretary would face criticism that she is abdicating her charge to enforce the immigration laws."
The memo also noted that Congress could just block the administration's actions: "Congress could also simply negate the grant of deferred action (which by its nature is temporary and revocable) to this population. If criticism of the legitimacy of the program gains traction, many supporters of legalization may find it hard to vote against this bill."
So there are a plenty of reasons the White House might be hesitant. On the flip side, immigration-reform activists are likely to press Obama to do more if the House fails to pass a bill. In the National Journal, Fawn Johnson reported that a few activists wonder if executive action might even be preferable at this point, since it wouldn't include all the measures to militarize the U.S.-Mexico border.
"The idea," Johnson writes, would be "to freeze the current undocumented population in place through an administrative order, give them work permits, and hope for a better deal under the next president, with the hope that he or she is a Democrat. It's a significant gamble, but some advocates—particularly those outside of the Washington legislative bartering system—argue that it's better than what they stand to see under the legislation being discussed now."