These days, the prospects for comprehensive immigration reform legislation look about as good the prospects for effective public transportation in Los Angeles. Since passing a Senate bill a year ago last June, Congress has proven itself incapable of further substantive work on the topic. Although House Republicans remain committed to playing political games with the lives of America’s eleven million undocumented men, women, and (most recently) children, there is virtually no legislative plan in sight.
In the face of this depressing gridlock, all eyes have turned to President Obama. Over the next few months, the president will be forced to answer what will no doubt be a defining question of his presidency: will he do everything in his power to address the humanitarian crisis created by our broken immigration system? Or will he kick the can down the road, leaving this urgent problem to linger for yet another day?
What President Obama can do is a separate, and much simpler, question. The Supreme Court has repeatedly confirmed that the president’s “broad discretion” in immigration law includes the authority to decline to deport those whose removal is not in the nation’s interest. And this authority is not just hypothetical. To the contrary, it has been exercised by almost every president since Eisenhower to grant relief to broad groups of undocumented immigrants.
Since 1976, presidents have granted relief from deportation and provided work authorization to millions of immigrants who would otherwise have been subject to deportation. Many of these grants of relief were made to individuals from nations facing war, natural disaster, or other strife. But others were made on the basis of family ties and other equitable factors—including a “family fairness” policy implemented by the INS in 1990 that offered protection from deportation to over one million undocumented family members of lawful immigrants.
This should not come as news to Obama. Indeed, he himself already joined in this tradition when he announced the Deferred Action for Childhood Arrivals program. Through that initiative, 500,000 young people who came to this country as children have been able to emerge from the shadows, to work, study, and participate more openly in the public life of the only country they have ever known. Now it is expected that he expand that program as broadly as possible.
Sometime soon, Obama will have to decide whether to side with those who would use immigration as a political football, or with those who seek real, substantive change. When he does, he should waste no time worrying about what is within his power. The president has all the authority he needs to grant broad relief should he so choose. Conversely, should he choose not to act, he should be prepared to answer politically for why he failed to do everything he could to provide relief to those who so desperately it. He certainly won’t be able to justify his choice by pointing to legal limitations on his powers.
Bansal is staff attorney for the National Day Laborer Organizing Network which filed an Administrative Procedures Act Brief to formally request expansion of deferred action and a suspension of deportations by the Department of Homeland Security in February of this year.