Legal, political questions surround Obama’s delayed immigration action

The latest chapter of this year’s long and winding immigration saga has Barack Obama’s administration delaying taking unilateral action to remove the threat of deportation for millions of undocumented immigrants, after vowing to do just that by the end of the summer.

After it became clear that a legislative solution was almost certainly dead in the 113th Congress, administration officials were said to be preparing wide-ranging changes to the way immigration laws were enforced. Although the White House has discussed few details in public, advocates were hoping for temporary legal relief and work permits for law-abiding undocumented migrants who had established roots in the United States — a population that could number in the millions.

However, under pressure from vulnerable Democrats up for re-election this year and with control of the Senate at stake, the administration is now apparently delaying an announcement of any changes until after the midterms, if it undertakes action on immigration at all. On Saturday, multiple news outlets quoted White House officials as saying any executive action on the matter would be delayed until after the November congressional polls.  

But that may come as no surprise, given the legal and political matters involved in the perennially explosive issue of what to do about the 11 million undocumented immigrants living in the United States.

Legal scholars have debated for months whether the president would be overstepping his authority in granting such a broad reprieve, with conservative lawmakers admonishing the administration for not enforcing the nation’s laws and saying that further executive action amounts to a power grab.

“If the president takes these actions, he’ll be sealing the deal on his legacy of lawlessness,” House Speaker John Boehner told reporters in July. “He’ll be violating the solemn oath he made to the American people on the day of his inauguration.”

But Hiroshi Motomura, a law professor at UCLA and the author of “Immigration Outside the Law,” said that characterization is unwarranted, given that the nation’s immigration system has always depended on setting enforcement priorities. No prior administration, after all, has had the will or the resources to prosecute all 11 million estimated violators.

“You have a system that runs on discretion,” he said. “People make it seem like that discretion is not supposed to be exercised at all and, all of a sudden, the president wants to exercise it. The question is not whether it is exercised but who does it and how.”

He added that Obama’s political opponents appear to take issue with the president’s implementing existing guidelines that certain undocumented migrants — those who have broken criminal laws, for example — be targeted for removal over others.

“He’s not doing anything that’s novel. He’s just being more open about it,” Motomura said.  

Muzaffar Chishti, an expert at the nonpartisan Migration Policy Institute, backed that assessment, saying that there’s plenty of precedent for selectively enforcing immigration laws — even including a member of the Beatles. He noted that John Lennon, in fighting his deportation case on the grounds of a 1968 conviction for cannabis possession, pointed out in 1972 that Immigration and Naturalization Service had nonpriority cases.

“Every single administration from the Ford administration to the George W. Bush administration has publicly acknowledged and encouraged the use of prosecutorial discretion,” Chishti said. “In almost any field of law enforcement, there are never enough resources to enforce the law against everyone who is guilty of a violation.”

Not all take such a benign view. Jan Ting, a law professor at Temple University and an Immigration and Naturalization Service commissioner under George H.W. Bush, said granting a version of amnesty to millions of undocumented immigrants goes well beyond the discretion practiced in immigration law in the past, which was on a case-by-case basis.

“It wasn’t the intent of the Founding Fathers that the president have that much executive authority simply because he can’t get what he wants through Congress,” he said. “I think it’s beyond the scope of his presidential powers.”

Still, Ting predicted the president might go through with his immigration plans simply because there is no one to stop him.

“It’s unlikely that the courts will find his action unconstitutional, simply because the courts are very reluctant to insert themselves into what they consider political questions between the two other branches,” he said.

With Republicans in Congress showing little appetite for opening impeachment proceedings in Obama’s last two years in office, Ting predicted Obama might go forward with his plan because “he can get away with it.”

John Yoo, the former Justice Department official responsible for crafting the George W. Bush administration’s legal reasoning for torturing terrorism suspects, and Robert Delahunty, a law professor at St. Thomas Law School in Minneapolis, offered an even more dire warning.

“The president’s claim of prosecutorial discretion in immigration matters threatens to vest the executive branch with broad domestic policy authority that the Constitution does not grant,” they wrote in a paper after the president announced his Deferred Action for Childhood Arrivals program, which offers relief to some undocumented immigrants who were brought over the border by their parents.

“Can a president decline to enforce federal laws barring that class from voting in federal elections? Can a president decline to enforce the deportation statute against all illegal immigrants because of a belief in an open borders policy?” Yoo and Delahunty continued, imagining the precedent such executive actions set for the future. “Can a president who wants tax cuts that a recalcitrant Congress will not enact decline to enforce the income tax laws? Can a president effectively repeal the environmental laws by refusing to sue polluters, or workplace and labor laws by refusing to fine violators?”

Even proponents of a wide-ranging executive action by the White House say that it is an imperfect option. The next president could easily undo whatever policies the administration comes up with. Moreover, the administration cannot offer a path of citizenship to undocumented immigrants or tinker with the number of green cards issued per year or address business interests at stake in the immigration fight.

“This is sort of a last resort effort to salvage a fundamentally broken immigration system,” Chishti said. “This clearly should be settled by Congress not only because whatever Congress does is much more lasting and therefore has a more durable impact — it also hints at much more of a consensus.”

Even if the legal questions are settled, the administration also has to navigate the political consequences.

Although it is difficult to imagine Obama’s relationship with Congress getting much worse, if he moves forward with his immigration plan, the last two years of his presidency are likely to be even more unpleasant. But immigration activists say that the president and his party can hardly afford to further alienate Hispanic voters, livid at his inaction thus far.

“The president stood in the Rose Garden on June 30, in light of Congress’ failure to act, and he said he would act without delay once he got recommendations from Homeland Security,” said David Leopold, a former president of the American Immigration Lawyers Association. “If he doesn’t do it, he’s breaking another promise. I don’t think this president can afford to break promises on immigration.”