Even without help from Congress, Obama has room to manoeuvr on immigration changes

Erica Werner / The Associated Press
August 1, 2014 05:52 PM

House Minority Leader Nancy Pelosi of Calif., accompanied by member of the Congressional Hispanic Caucus and Democratic leaders, speaks during a news conference on Capitol Hill in Washington, Friday, Aug. 1, 2014, as the House tries to deal with legislation on the border crisis, a day after Congress was supposed to go into its August recess. (AP Photo/J. Scott Applewhite)

WASHINGTON - What can President Barack Obama actually do without Congress to change U.S. immigration policies? A lot, it turns out.

There are some limits under federal law, and anything the White House ultimately decides to do may be challenged in court as unconstitutional. But leading legal experts say the White House almost certainly could delay indefinitely efforts to deport millions of immigrants already in the U.S. illegally, and it could give them official work permits that would allow them to legally find jobs, obtain driver's licenses and pay income taxes.

Here is what Obama could not do without approval from Congress: He couldn't generally give large groups of immigrants permission to remain permanently in the United States, and he couldn't grant them American citizenship. And he couldn't generally make them eligible for federal or state social benefit programs, such as welfare payments.

With Congress declining to approve significant changes to immigration laws, the White House is hinting that Obama is considering broadening a program known as Deferred Action for Childhood Arrivals to temporarily shield from deportation many young immigrants who came to the U.S. as children and allow them to get a work permit. Immigration reform advocates have been pushing to include parents of U.S. citizens and the parents of young immigrants already protected under the earlier program, which covers more than 700,000 immigrants so far.

All told, expanding the program could affect as many as 5 million immigrants who came to the U.S. illegally.

Republicans in Congress, including House Speaker John Boehner, have said Obama is failing to enforce U.S. laws by effectively disregarding illegal immigration.

In a direct challenge to Obama's policies, the Republican-led House of Representatives on Friday night passed legislation that appeared designed to prevent those who've already gotten work permits under the deferred action program from renewing them, ultimately making them subject to deportation. With the Senate controlled by Democrats, the bill seemed unlikely to advance.

So, how powerfully can Obama act without approval by Congress?

Obama announced in March that he had directed Homeland Security Secretary Jeh Johnson to review the administration's immigration enforcement polices and recommend any possible changes. In May, Obama delayed the review to allow Congress time to act on immigration reform before it adjourned this week for the summer.

Before leaving for the five-week recess, Congress did not pass legislation to provide the funding Obama asked for to help deal with the more than 57,000 unaccompanied child immigrants, mostly from Central America, who have crossed the U.S.-Mexico border since Oct. 1.

On Friday night, the House approved a bill that would send migrant youths back home without hearings, a measure that also appeared destined to go nowhere in the Senate.

David Leopold, an immigration lawyer who has supported Obama's previous administrative changes to immigration law, said nothing in the law requires the government to deport every immigrant living in the country illegally.

The law "makes someone deportable, but that boils down to enforcement of immigration law. And that is open to enforcement priorities," Leopold said.

Leon Rodriguez, a former Justice Department lawyer and the newly confirmed director for U.S. Citizenship and Immigration Services, this week told lawmakers that the government doesn't have the resources to deport the more than 11 million immigrants estimated to be living illegally in the United States, "so, the question is, are we going to let them persist in the shadow economy or are we going to have them work and pay taxes?"

Obama has already pushed the bounds of his authority on immigration law further than his predecessors.

After a broad immigration bill failed in 2007, President George W. Bush ordered his staff to come up with every possible change he could make without the approval of Congress.

Gregory Jacob, who worked on immigration issues with the president's Domestic Policy Council, said included in the list was providing similarly broad protections from deportation as those implemented by Obama. But Bush's staff concluded that the president didn't have the legal authority to grant such "sweeping and categorical" protections, Jacob said.

Bush's director for Immigration and Customs Enforcement, Julie Myers Wood, said much of the discussion at the time focused on small changes to visa programs or other efforts that would impact relatively small groups of immigrants. One concern, she said, was the potential for "unintended consequences" of encouraging more illegal immigration.

Republicans have said Obama has done what the Bush administration feared. Many have blamed the president for the influx of unaccompanied immigrant children.

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Alicia A. Caldwell on Twitter at www.twitter.com/acaldwellap


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