Legal Experts Debate Whether Obama Can Shield Millions From Deportation
by Laura Meckler
The debate over President Barack Obama ’s plans to shield millions of illegal immigrants from deportation hinges on a simple question: How many is too many?
There is widespread agreement that presidents can decide who gets deported and who gets to stay, part of the concept known as “prosecutorial discretion.” There also is precedent for granting temporary legal status to individuals and smaller groups of people, such as victims of natural disasters.
As such, some legal experts say Mr. Obama’s plans represent an expanded version of these longstanding principles.
But others say his plans go beyond what has been tried before and wouldn’t pass constitutional muster because its magnitude transforms it into something the legislature should handle.
“It would clearly not be legal for the president to offer [legal status] to 11.4 million unauthorized immigrants,” said Marc Rosenblum, an immigration expert at the nonpartisan Migration Policy Institute, referring to the number of undocumented residents. “It’s clearly legal on any individual case. Somewhere in between is where the line is.”
Mr. Rosenblum said he believes Mr. Obama’s expected course would pass muster. Still, he said, the fact Congress has debated similar moves and chosen not to approve them “weakens his argument.”
Mr. Obama is considering a set of executive actions on immigration, sparking opposition from Republicans in Congress. The centerpiece move would expand a 2012 program that offered temporary legal status to young people brought to the U.S. as children, known as Dreamers.
People familiar with White House thinking say people most likely to qualify are parents of U.S. citizens and legal residents, and possibly parents of Dreamers. Spouses of citizens might also be included. Mr. Obama is also likely to expand the criteria for the 2012 program so that more Dreamers qualify.
Together, these groups could total some four million people, on top of more than a million Dreamers already eligible for what is called “deferred action,” according to one of the people familiar with the discussions.
The program’s legal justification begins with the fact that enforcement budgets don’t allow the administration to deport all illegal immigrants, argues a letter to Mr. Obama signed by 136 law professors. The letter notes that the president has deported more than two million people over his term.
“The application of prosecutorial discretion to individuals or groups is grounded in the Constitution and has been part of the immigration system for many years,” they wrote.
Stephen Legomsky of the Washington University School of Law, chief counsel for U.S. Citizenship and Immigration Services from 2011 to 2013, said even if the president sheltered five million people from deportation, there would still be more than that subject to deportation.
The letter notes, among other examples, President George H.W. Bush granted work authorization to as many as 1.5 million spouses and children of illegal immigrants who qualified under a 1986 law. Congress limited the number of people who benefited, but Mr. Bush used his authority to expand the group.
On a smaller scale, President George W. Bush granted deferred action in 2005 to foreign academic students affected by Hurricane Katrina, and in 2007, to certain Liberians.
Deferred action isn’t overtly authorized, experts say, but it is referred to in various statutes, suggesting Congress endorses the policy. Separately, experts point to the 1986 law giving the administration authority to grant work permits.
The question raised by opponents is whether Mr. Obama’s likely program would be so large that it can no longer be justified under these precedents.
“Presidents have long claimed a high degree of discretion in the immigration area and courts have generally deferred to such decisions when they relate to priorities in enforcement. However, the sheer size of this proposed change magnifies the already great concerns under the separation of powers,” said Jonathan Turley, a constitutional law professor at George Washington University.
Mr. Obama himself cast doubt on his authority last fall, when a protester said the president has the power to stop deportations.
“Actually I don’t,” the president replied. “If, in fact, I could solve all these problems without passing laws in Congress, then I would do so. But we’re also a nation of laws. That’s part of our tradition. And so the easy way out is to try to yell and pretend like I can do something by violating our laws.”