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Obama's Immigration Order Will Be Legal. But Will the Public Like It?

Getty Images/Win McNamee

President Obama will formally announce an executive order on immigration tonight, following through on a promise to bring several million undocumented workers out of the shadows—at least temporarily—and likely sending his conservative critics into a frenzy.

More details of the plan leaked out on Wednesday, as Administration officials huddled with supporters and Obama dined with Congressional supporters. But the basics, which Obama will formally unveil in an address from the White House, have been clear for a few days. Obama’s order will offer a deportation reprieve and working papers to undocumented parents of children who are either citizens or have legal residency here. The order will grant similar status to undocumented residents who were initially brought here as children—by expanding eligibility for the existing “Deferred Action for Childhood Arrivals” (DACA) program. The order will not include parents of DACA children, to the disappointment of immigration advocates.

Between those and other changes, as many as 5 million people could gain protection and working papers, although the number depends a bit on who’s counting. Obama will also announce some new border security measures, along with expanded visas for high-tech workers. Because this is an executive order, the changes will, by definition, by temporary. An Obama successor in the White House could reverse it.

That last part is a key reason that Administration officials believe this is legal: Obama’s action will be simply a matter of exercising prosecutorial discretion with the confines of existing immigration law. As Erwin Chemerinsky and Samuel Kleiner have noted in these pages, Presidents Reagan and Bush invoked similar authority during their tenures. Even many (though not all) conservative attorneys seem to think Obama will be on solid legal ground, given the substance of immigration statutes and very real fact that the government can’t be deporting all undocumented immigrants anyway. 

That doesn’t mean most Americans think this is a good idea. Some will see it as “presidential overreach of monumental proportions,” as Senator Jeff Sessions put it. And two new polls show the public divided or somewhat opposed to presidential executive action if it’s an alternative to congressional action. But, as Greg Sargent notes, congressional action really isn’t an option right now. And the Obama Administration is likely to frame its action in ways that polls suggest the public likes—by emphasizing that people who go through the new programs will have to go through background checks and, afterwards, will have to start paying taxes. Will these arguments play well? Will the image of a president getting something done assuage those frustrated by Washington gridlock? Your guess is as good as mine—and I guess we’ll start to find out tonight.

Jonathan Cohn

From QED and the New Republic

Danny Vinik: Obama’s immigration order will be legal, just like it was for Reagan and Bush 

Brian Beutler: GOP rage doesn’t make Obama’s move illegitimate 

Jonathan Cohn: Immigrants will get working papers, but not Obamacare 

From elsewhere

Dara Lind: What Obama will do, why, and whether it’s legal (Vox) 

Randy Capps and Marc Rosenblum: Who might get relief (Migration Policy Institute) 

Dara Lind: How DACA brought immigrants out of the shadows (Vox) 

Sam Stein: Even the Federalist Society thinks Obama’s deportation order will be legal (Huffington Post) 

Emily Badger: Why family values conservatives should rally behind immigration reform (Wonkblog) 

Francis Wilkinson: If Obama’s move does not step over the line, it gets awfully close (Bloomberg View) 

Ramesh Ponnuru: Liberals can’t justify the immigration order (Bloomberg View) 

David Frum: Reagan’s immigration order isn’t really a valid precedent for this. 

Ross Douthat: The immigration order won’t really be temporary (New York Times