Obama’s immigration decision has precedents, but may set a new one

By Julie Hirschfeld Davis, New York Times News Service

Friday, Nov. 21, 2014 | 9:47 a.m.

President Barack Obama’s planned action to shield millions of immigrants in the U.S. illegally from deportation and grant them work permits opens a new front in the decadeslong debate over the scope of presidential authority.

Although Obama is not breaking new ground by using executive powers to carve out a quasi-legal status for certain categories of unauthorized immigrants - Republican Presidents Dwight D. Eisenhower, Ronald Reagan and George H.W. Bush all did so - his decision will affect as many as 5 million immigrants, far more than the actions of those presidents. Obama’s action is also a far more extensive reshaping of the nation’s immigration system.

“The magnitude and the formality of it is arguably unprecedented,” said Peter J. Spiro, a Temple University law professor. “It’s fair to say that we have never seen anything quite like this before in terms of the scale.”

The breadth of Obama’s decision is already raising serious legal and constitutional questions, fueling Republican charges of imperial overreach and worries among some Democrats of future fallout.

In an acknowledgment of the difficult questions of law and executive power Obama is raising with his action, the White House took the unusual step Thursday night of releasing the formal, 33-page Justice Department memo detailing the action’s legal underpinnings. Such internal legal opinions are seldom revealed to the public.

The memo, White House officials and a broad array of legal experts assert that the president’s directive, announced Thursday night in a prime-time address to the nation, rests on firm legal ground. As chief executive, they say, Obama has virtually unfettered “prosecutorial discretion” to decide when he will prosecute criminal infractions and when he will not.

They also say that because Congress does not appropriate nearly enough money to deport all of the 11 million immigrants estimated to be living in the United States illegally, the president is obligated to choose whom he deports, so he cannot reasonably be accused of usurping lawmakers’ authority or failing to execute the law.

“The key is that the president’s actions will still leave millions of undocumented immigrants to go after, and that will be with resources appropriated by Congress that still make barely a dent in the remaining population,” said Stephen H. Legomsky, a Washington University law school professor who was chief counsel of the U.S. Citizenship and Immigration Services from 2011 to 2013.

Still, some lawyers critical of Obama argue that by publicly grouping a large number of undocumented immigrants who are not subject to U.S. law and granting them a special status, the president has gone far beyond the limits of prosecutorial discretion and crossed the line into legislative fiat.

“This action certainly looks a lot more like, 'I’m changing the rules of the game,' rather than 'I’m just choosing not to exercise my discretion,' and that runs counter to Congress’ power to decide what the law is,” said Shannen W. Coffin, a Justice Department lawyer under President George W. Bush who was counsel to Dick Cheney when Cheney was vice president. “It’s highly questionable as a constitutional matter.”

As the chief executive, Coffin added, the president has a duty to enforce the law, and while declining to do so may not be unconstitutional in every case, “at some point when you’re doing it en masse, you’re doing something very damaging.”

Previous presidents who used their executive authority to shield immigrants confronted little of the fury that Obama now faces, in part because their actions affected fewer people and the issue was not as polarizing at the time.

“Back in the 1980s, immigration was controversial, but there was a bipartisan consensus that we had to reform immigration laws,” said Stephen W. Yale-Loehr, who teaches immigration law at Cornell University.

In 1986, Reagan signed the so-called “amnesty” law passed by Congress that granted legal status to 3 million immigrants, and then acted on his own the following year to expand it to about 100,000 more. That action extended the amnesty to immigrants who had left the country and then used fraudulent documents to be readmitted, and shielded from deportation minor children whose parents qualified.

Bush moved in 1990 to allow 1.5 million spouses and children of immigrants who were in the process of becoming legal permanent residents to stay in the country and obtain work permits. At the time, that amounted to about 40 percent of the immigrants living without documentation in the United States, then estimated at 3.5 million.

Obama’s order would affect a slightly larger proportion, about 45 percent, of the undocumented population.

The numbers matter because legal scholars say a president’s discretionary power on immigration is not unlimited. Were he to refuse to deport any immigrants, Obama could open himself to a constitutional challenge that he was failing to live up to his duty to “take care that the laws be faithfully executed.”

“There are limits, but we are well within those,” a senior administration official said, speaking on condition of anonymity because he was not authorized to publicly detail the legal underpinnings of the policy. He declined to specify what the limits were.

The announcement on Thursday was the latest presidential grant of deferred action, a concept in immigration law that was also the basis for Obama’s 2012 directive granting two-year deportation reprieves to immigrants without legal status who were younger than 30 and who had been brought to the United States as children and had graduated from high school or joined the military.

The president’s new policy expands that 2012 order by removing the age limit and applying it to anyone brought to the United States as a child before 2010. But Obama declined to include the parents of those immigrants in Thursday’s directive, after administration lawyers concluded that doing so would exceed his authority.

David A. Martin, a University of Virginia law professor who was a counsel at the Department of Homeland Security in 2009 and 2010, said that beyond the question of whether Obama was staying within the bounds of his power, the bigger problem for the future was one of precedent. Even if his directive is legally defensible, Martin said, Obama may be paving the way for future Republican presidents to act in similarly sweeping ways to contravene laws that Democrats cherish, like the financial regulations enacted in the wake of the 2008 financial meltdown.

“It is problematic if presidents can just make major inroads in programs that Congress has enacted and funded,” Martin said.

Robert Pear contributed reporting.