By Justin Sink - 08/06/14 06:00 AM EDT
Top administration officials are trying to determine how far President Obama can act on immigration reform through executive action while remaining on the right side of the law.
Attorney General Eric Holder and Homeland Security Secretary Jeh Johnson will present Obama with a slate of options for changing deportation policies by the end of the summer. The White House said Obama will move shortly after that, blaming gridlock on Capitol Hill.
Immigration activists and human rights groups have pressed Obama to act aggressively, urging the White House to halt deportations for as many illegal immigrants as possible. But the administration — already facing a Republican lawsuit accusing Obama of executive overreach — says it is determined to act only within the law.
“It remains an open question whether these proposals that are floated by a wide variety of advocates on this issue is something that falls within the president’s authority to act on,” press secretary Josh Earnest said Monday.
“So, I’m going to let the legal experts render a judgment on that and consider what options are available to the president.”
Those experts suggest Obama has significant latitude to act, although there are some concrete limits on what he can do.
Much of his authority comes from “prosecutorial discretion,” which allows the government to prioritize which cases it wants to pursue.
There are different ways the president could act.
Among the least legally controversial would be for Obama to issue a memo instructing prosecutors to focus their efforts only on individuals with ties to organized crime or convicted of serious criminal offenses.
Currently, the administration prioritizes the removal of anyone with a criminal conviction — which could include minor offenses, including immigration status crimes.
By simply telling prosecutors not to prioritize proceedings against those individuals, the president could alleviate complaints from immigration groups that his administration has been particularly aggressive in pursuing deportations.
“That seems to me a very viable option and certainly within the administration’s purview,” said Crystal Williams, the executive director of the American Immigration Lawyers Association.
The administration could also alter the workings of the Secure Communities program, which crosschecks the fingerprints of individuals who are arrested against immigration databases. Obama could order changes so that fewer individuals who are arrested, and flagged as illegal immigrants, would be detained and deported.
More controversially, the president could move to expand the Deferred Action for Childhood Arrivals (DACA) program issued by the Department of Homeland Security in 2012 for children who were brought to the country illegally. Under that program, individuals affirmatively apply for a renewable, two-year work permit and temporary reprieve from deportation proceedings.
Experts say that, as long as individuals deemed eligible for the program are evaluated on a case-by-case basis, such an expansion should — like DACA — pass legal muster.
“As long as it’s a case-by-case review based on a general principle, most lawyers think the president does have wide latitude legally,” said Migration Policy Institute fellow Doris Meissner, a former commissioner of the U.S. Immigration and Naturalization Service.
Finally, the administration could change how they currently interpret the law to be more charitable.
For instance, the law mandates entry bans for those who overstay their visas in the U.S. that can stretch as long as a decade, with hardship waivers difficult to obtain.
The administration could roll back the interpretation of extreme hardship to make it easier for individuals with family ties to return, Williams says.
Still, the administration says that, no matter what the president decides to do, it will be no match for comprehensive immigration reform from Congress. And legal experts say there are crucial areas where the president explicitly cannot act.
“It’s very clear the president does not have the power to give people green cards, and certainly does not have the power to create grants of citizenship,” Meissner said. “He cannot go beyond a temporary status like DACA that sort of defers deportation, so it’s all reversible.”
However Obama decides to act, he’s likely to face criticism from Republicans who say he has neglected his law enforcement duties.
“It’s time for President Obama to wake up from the alternate reality he’s living in,” said Republican National Committee spokeswoman Ali Pardo.
"Threatening executive overreach as a political tool to turn out voters is not only flawed thinking but hurts vulnerable Democrats across the country and goes against overwhelming demands to secure our borders and strengthen interior enforcement.”
Possible Obama administration actions on immigration
• Issue a prioritization memo on deportations. President Obama could direct prosecutors to focus deportation efforts on individuals convicted of serious crimes —not those with minor criminal convictions.
• Expand DACA. The Deferred Action for Childhood Arrivals program, announced in 2012, affords temporary legal status and work permits to children brought to the country illegally. The administration is reviewing whether to extend it to those children’s parents or to illegal immigrants with children born in the U.S.
• Roll back Secure Communities. Activists have asked the president to limit the program, which allows local governments to share the fingerprints of individuals who are arrested with Immigration and Customs Enforcement. Those flagged as illegal immigrants can be deported, even if they are not convicted of a crime.
• Reinterpret existing law. The administration could more charitably define waivers and visa requirements to allow individuals — especially those with family ties to the U.S. — greater opportunity to enter the country, even if they had previously violated immigration law.