New York Times
By Michael D. Shear and Ashley Parker
May 16, 2014
WASHINGTON
— At a recent White House meeting with immigration activists, President
Obama told the group his hands were tied. Even if he wanted to halt the
deportations
of millions of illegal immigrants, the president told the group, he
could not do so without congressional approval.
But
Mr. Obama has more latitude than he lets on, legal experts say, and he
may soon reveal how he intends to use it. Under increasing pressure to
slow the pace of deportations
from Hispanic supporters who helped get him re-elected in 2012, the
president has ordered his Homeland Security secretary to make
immigration enforcement more humane.
Protesters
at the White House on Monday demanded that President Obama stop
deportations and work toward an immigration overhaul.
That
directive has led to an intense debate about how far the president
should go in protecting large groups of illegal immigrants from
deportation. Despite the president’s
repeated insistence that he is “not a king,” administration officials
are considering a range of options to further shift enforcement to focus
on criminals and recent border crossers, and away from people with
clean records.
At
a minimum, officials said the Department of Homeland Security was
likely to issue new guidelines for law enforcement agents to make it
clear that immigrants who are
part of a family settled in this country should not be priorities for
deportation, especially if their family includes American citizens.
Officials are also considering changes that would shield some people who
have returned to the country illegally after
being deported. Right now, those people are charged with a felony and
ordered out of the country.
Such
changes could affect tens of thousands of people, but they would fall
far short of the demands from most immigration activists to address the
concerns of the 11 million
illegal immigrants in the country. Legal scholars say the White House
could also carry out proposals that would remove the fear of deportation
and provide work permits for as many as five million illegal
immigrants.
“Presidents
have pretty much complete discretion when it comes to enforcing
criminal and other statutory regimes,” said Peter J. Spiro, who teaches
immigration law at
Temple University. “President Obama can’t start handing out green cards. Short of that, from a legal perspective, there are no serious
constitutional or other legal constraints that apply here.”
Instead,
the constraints on Mr. Obama are mainly political. Senior White House
officials and Democrats on Capitol Hill fear that any move to halt
deportations for millions
of people would all but end any hope of negotiating an immigration deal
with Republicans that would be more permanent than any unilateral
action he could take. A bill that passed the Senate last year has
stalled in the House.
And
even if the White House were to give up on an immigration overhaul —
something officials said had not yet happened — unilateral action by Mr.
Obama to waive deportations
for large groups of people would be politically explosive. Some White
House officials believe it could even lead Republicans to start
impeachment proceedings against the president.
Senator
Charles E. Schumer, Democrat of New York, has warned the White House
that even moderate efforts to reduce deportations could scuttle
legislative negotiations without
satisfying immigration activists, and has said House Republicans should
be given through the summer to pass their own legislation.
But
with no obvious movement on legislation, pressure is mounting for Mr.
Obama to do something. “It’s really about the administration’s political
will, and how bold he
wants to be in the final years of his administration,” said Marielena
Hincapié, the executive director of the National Immigration Law Center.
In
remarks to law enforcement officials at the White House on Tuesday, the
president hinted that he intended to take unilateral action to ease the
threat of deportation
for some illegal immigrants. He gave little indication, however, of how
broadly he wanted to change the rules.
“You
know, these are folks who are woven into the fabrics of our
communities. Their kids are going to school with our kids. Most of them
are not making trouble,” Mr. Obama
said, lamenting the aggressive enforcement of deportation laws against
them. “That’s just not a good use of our resources. It’s not smart. It
doesn’t make sense.”
Republicans
argue that the president long ago overstepped his constitutional
authority in many areas, citing the repeated changes he has made to his
signature health care
law, and his promise in his State of the Union address to use executive
action to circumvent Congress. Deploring an “imperial presidency” has
become a rallying cry for the conservative base.
But
it is far from clear that Republicans or their allies can prevail in a
legal challenge to Mr. Obama’s executive authority on deportations.
Courts
have consistently given presidents wide discretion to prioritize
limited resources for various kinds of law enforcement, legal scholars
said. In a ruling last year
on a lawsuit by immigration agents, a federal judge dismissed the suit,
saying that while an administration program that halted deportations of
young unauthorized immigrants was illegal, the federal court did not
have jurisdiction to hear the case.
Conservatives
are bracing for the fight anyway. In a speech on the Senate floor late
last month, Senator Orrin G. Hatch of Utah accused the president of
being willing
to bend the nation’s laws “past their breaking point,” and said he
feared that Mr. Obama was preparing to ignore congressional mandates
that require the deportation of illegal immigrants.
Dan
Holler, the communications director of Heritage Action for America, a
conservative advocacy group, said that “broadly speaking, there is a
difference between sort
of enforcing the law and making do with the resources that you have,
versus what you’ve seen from this administration, which is drawing these
lines that reinterpreted what discretion is.”
Under
Mr. Obama, immigration officials have expanded the use of programs that
empower local law enforcement agencies to enforce immigration laws. In
2011, the federal
government made some changes to guidelines to focus on immigrants who
were criminals or a threat to the community.
In
the coming days, the Homeland Security secretary, Jeh Johnson, is
expected to unveil his short-term proposal for responding to the
president’s directive to go further.
Mr. Johnson has been consulting broadly with advocates, immigration
agents and legal scholars, among others. So far, most people involved in
the debate expect the administration to pursue the most modest option,
altering the existing guidelines so that illegal
immigrants who are settled in families here are no longer a priority
for deportation.
“Every
big-city police chief says we’re going to go after muggers, not
jaywalkers, and it’s just as reasonable for Obama and Jeh Johnson to say
we’re going to go after
criminals, not housekeepers who are moms,” said Frank Sharry, the
executive director of America’s Voice, a pro-immigration group.
Some
immigration lawyers are urging Mr. Obama to go further by making it
easier for about 1.5 million illegal immigrants to apply for permanent
green cards, in some cases
within months. That group includes people who would qualify for
permanent legal status because of an immediate family tie to an American
citizen, but would typically have to leave the United States for
several years before returning to get a green card. Even
advocates say that would be seen by many critics as a grant of amnesty.
A
third option — the one preferred by many immigration activists — would
involve expanding Mr. Obama’s 2012 program, known as Deferred Action for Childhood Arrivals, that
halted deportations and made temporary work permits available to more
than 800,000 young adults who were brought illegally to the United
States as children. If the White House expanded the program to include
the undocumented parents of these young adults and
of American citizens, it would potentially allow about four million to
five million undocumented adults to remain in the country without the
threat of immediate deportation.
In
2012, current and former officials said White House lawyers were
worried about the program for young adults, concerned that it might be
illegal because it granted temporary
work permits without congressional authorization.
“There
was a lot of consternation in the White House counsel’s office about
the legality of that,” one former senior administration official said.
Kathryn Ruemmler, the
White House counsel, declined to comment.
Officials
said White House and Department of Homeland Security lawyers eventually
concluded that the program was legal, in part because, technically, the
president did
not immediately grant legal status to a whole class of people. Instead,
he set up a process by which people could apply for it, though, of
course, nearly everyone who did so was granted it.
The
same legal principle would apply if the president expanded the program
to include parents, said Stephen H. Legomsky, who helped shape the
program as the chief counsel
for Citizenship and Immigration Services.
“It’s well-entrenched doctrine,” he said. “When it comes to enforcement, it’s the president’s call.”
For more information, go to: www.beverlyhillsimmigrationlaw.com
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