Can Obama legalize 8 million immigrants on his own?

February 4

Here's the latest twist in the immigration debate: The AFL-CIO and other groups are asking President Obama to protect millions of undocumented immigrants from deportation, as a way to jolt Congress into action.

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(Toni L. Sandys / The Washington Post)

The idea, as AFL-CIO president Richard Trumka has explained, is that Obama should unilaterally halt deportations for roughly 8 million illegal immigrants who would likely qualify for a path to citizenship under a stalled Senate bill. That would ratchet up the pressure on Congress to finally pass legislation.

Now, the White House has shown no sign that they'll even consider this. As my colleague David Nakamura explains, there are plenty of reasons not to. Many Republicans say they're reluctant to pass an immigration bill because they don't trust Obama to enforce any new border-control measures (even though he's already deported 2 million people since 2009). A push by the White House to defer deportations wouldn't exactly allay those fears.

So how would this deferred deportation actually work? Back in 2012, the administration was able to stop the deportation of hundreds of thousands of undocumented young adults under a deferred-action program known as DACA. Obama could, in theory, expand that program, allowing even more current immigrants to work legally in the United States without fear of getting expelled from the country.

But, legal experts say, it would be very difficult to expand this program to cover all (or even most) of the country's  existing 11 million undocumented immigrants. And Obama only has the power to defer deportation — he can't fully "legalize" immigrants on his own. That's a key distinction here. True immigration reform ultimately depends on Congress.

What the Obama administration did back in 2012: DACA

People attend an orientation class as they file their application for Deferred Action for Childhood Arrivals program at Coalition for Humane Immigrant Rights of Los Angeles on Aug. 15, 2012. (Kevork Djansezian/Getty Images)
People attend an orientation class as they apply for the Deferred Action for the Childhood Arrivals program at Coalition for Humane Immigrant Rights of Los Angeles in August 2012. (Kevork Djansezian/Getty Images)

In June of 2012, then-Secretary of Homeland Security Janet Napolitano signed a memo creating the Deferred Action for Childhood Arrivals (DACA) program. This is the program that the AFL-CIO and others want to expand.

The DACA program applies to any undocumented immigrant age 16 to 31 who came 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 and adults 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 2013, the administration had received more than 550,000 applications for DACA and approved about 72 percent of them. There were another 350,000 or so youths and adults 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


No, Obama can't actually unite Mexico and the United States by executive order. (AP)

The legal rationale for the DACA program was outlined in a letter (pdf) drafted in 2012 by UCLA law professor Hiroshi Motomura and co-signed by nearly 100 top legal scholars around the country. In an interview last year, 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 undocumented family members of legal immigrants. Or to workers who are bringing civil rights or labor-violation claims. Or to those with disabled children. It's possible that these moves 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," said 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 dismissed last year 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.

Indeed, President Obama himself has said he can't do anything overly sweeping. "With respect to the notion that I can just suspend deportations through executive order, that’s just not the case," he said at a Univision town hall in 2011. Note, though, that he said all this before he signed he created the DACA program and deferred deportation for a number of youths.

Deferred-action is not legalization


Undocumented immigrants line up outside a Los Angeles Deferred Action Application Event. (The Washington Post)

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," said 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," wrote anti-immigration activist Mark Krikorian. "No one."

Using the pardon power

There's another option here that Univision's Adriana Vargas discussed last summer. President Obama could, in theory, use his presidential pardon power to give amnesty to some undocumented immigrants currently in the country. He certainly couldn't give them citizenship, but amnesty could at least allow them to stay here. "I don't think there's anyone who would argue the president doesn't have that power," P.S. Ruckman Jr., a professor of Rock Valley College in Illinois, told NPR.

The question is whether this is likely. This route would be even more unprecedented than the deferred-action plan sketched above, and for now, few people are talking about it.

The politics of deferred action are also tricky


U.S. Customs personnel. (AP)

So far, we've just been talking about the legality of an expanded deferred-action program. Whether the Obama administration 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. In a recent online chat, the president hinted that he might take this route if Congress can't pass legislation: "If, for some reason, we’re seeing it not getting done,” the president, “I will look at all options to make sure we have a rational, smart system of immigration." But White House officials quickly told the Post that the president was not shifting his position and "that he stands by previous statements that he must enforce the law."

Note: Parts of this post were first published in August and have since been updated/revised to reflect recent developments. 

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Howard Schneider · February 4