Under escalating pressure from immigrant-rights advocates, President Barack Obama pledged to review his deportation policies late Thursday. It was the first suggestion in over a year that Obama may act alone on immigration while legislative reform languishes in the House of Representatives—which, in keeping with a theme, recently voted to undo deferred action for young immigrants, or “Dreamers,” but shows no signs of voting on the Senate’s comprehensive bill.
Until now, the White House has insisted that it cannot legally slow deportations, which Obama has called tantamount to refusing to enforce the law. Legal experts dismiss that notion. “I think there’s little serious question that the administration has broad discretion in almost every aspect of the deportation machine,” Michael Wishnie of Yale Law School told me. Far harder to wave away are the difficult politics of the situation: Republicans claim their distrust of Obama is already an impediment to reform, and say any executive action would diminish its chances.
But the anger of immigrant-rights groups—and the president’s declining popularity among Latinos—are making it hard to wait on Congress. Obama is approaching the two-millionth deportation of his tenure, putting him far ahead of where George W. Bush was at this point in his presidency, and earning him the unsavory nickname of “deporter-in-chief.” He may need to use his presidential pen just to deflect pressure onto the Republicans.
Unlike Congress, Obama can’t provide a path to citizenship for any of the 11 million illegal immigrants currently in the U.S.—the most he can grant is a temporary reprieve from deportation, like the two-year “deferred action” he made available to Dreamers in 2012. (The order is called Deferred Action for Childhood Arrivals, or DACA.) If he decides to expand that policy, how far can he go?1 As Hiroshi Motomura of the UCLA School of Law put it, “He would reach political constraints long before he reaches legal ones.”
The clearest legal limit on Obama’s power is the fact that Congress appropriates money for deportations every year, and he has to spend it for that purpose. The White House says this has necessitated that deportations continue apace. But Wishnie points out that a set amount of funding doesn’t need to translate into a set number of arrests. Immigration and Customs Enforcement (ICE) “can choose to round up a lot of easy targets with not a lot of resources, or they can dedicate resources to more complicated cases, like drug trafficking,” he said. Between “five drug king pins” and “the day laborers on the street corner and the nannies in the park… it’s the president’s choice.”
The White House could argue that it has already made that choice, with the so-called Morton Memo, which the Department of Homeland Security issued in 2011. This document laid out who was high-priority—for example, felons and gang members—and who was low—minors, the elderly, victims of crime. But ICE agents and local law enforcement have widely ignored Morton: That’s part of what spurred Obama to enact DACA. “All DACA does is give people in group number 15 a piece of paper that says, ‘You’re group 15. We will not go after you,’” Motomura explained. As Brad Plumer has written at The Washington Post, it’s debatable how much of his priority list Obama could formalize this way—but there’s no legal basis for arguing that DACA is as far as he can go.
The executive authority that justifies both DACA and the Morton Memo is called “prosecutorial discretion,” and it’s based in our government’s fundamental separation of powers. Essentially, “Congress gets to make the laws, and it’s the president and the president alone who gets to decide when and how and if those laws should be enforced against individuals,” said Peter Markowitz of Cardozo Law School. This contains another possible limitation on Obama’s authority: To stay on the right side of the law, Motomura said, he would have to exercise that discretion rationally, and in a way that promotes good governance.
But it wouldn’t be hard to argue that a sizable expansion of DACA smartly satisfies those requirements. For one thing, Motomura said, comprehensive immigration reform is pending in Congress, and as long as there’s reason to think it could pass in the next few years, it doesn’t make sense to keep deporting the people who would clearly be in line for citizenship: Why spend money and upend lives only to create a clear injustice when reform finally comes to pass? Obama’s action could also make the system more consistent and fair, since it would leave less up to individual officers in the field. Above all, Motomura said, there is a humanitarian argument for providing “peace of mind” to people who are low-priority.
Under this logic, the only bounds on Obama’s legal authority might be relatively uncontroversial—he might have a hard time justifying a deferred action policy based on racial discrimination, for example, or one that included people who have been deemed threats to national security. Some experts even believe Obama has the legal power to stop deportations altogether, though the chances he would do so are more or less nil. When activists and politicians discuss strong candidates for deferred action, they often mention the parents of Dreamers, family members of U.S. citizens, and, more broadly, those who have found work and are an asset to the economy.
Even as Obama has cracked open the door to executive action, he has taken care to keep Congressional torpor at the front of everyone’s minds. “There is no fix here that does not include legislation,” White House press secretary Jay Carney said Friday. Even Obama’s broadest prosecutorial discretion can only yield temporary relief—but for the moment, that looks to be the only kind available.
This post has been updated.
Deferred action isn't the only option available to Obama: He could achieve a similar effect a number of ways, for example by using his power to pardon, as noted by Plumer. But given DACA's success, experts say he's most likely to stick with that strategy.