President Obama has announced that before the end of the year he intends to issue executive orders to address the dysfunctional immigration system if Congress does not act on immigration reform legislation. There is widespread speculation that the executive order would grant a temporary reprieve from deportation to a portion of the approximately 11 million undocumented immigrants in the United States. The New York Times has reported that the program may allow parents of U.S. citizens or lawful permanent residents to obtain deferment of deportation if they have been in the United States for a certain amount of time, potentially shielding millions of undocumented individuals. The president may also provide more visas for high-skilled workers. Republicans have objected, saying the president does not have such authority and that unilateral action will make cooperation with Congress on legislative reform impossible.
It has been suggested that the president is likely to implement a program of deferred action for certain undocumented immigrants that will be similar to, and an expansion of, the 2012 Deferred Action for Childhood Arrivals (DACA) program, which grants a two-year reprieve from deportation to young undocumented immigrants who entered the United States before turning 16 and meet certain educational and other criteria. The DACA program may be renewed for another two years and provides temporary work authorization. Critics of the program filed suit claiming that the program constituted a derogation of the obligation to execute the laws. The court dismissed the case on jurisdictional grounds, but suggested that the program was probably contrary to congressional mandate.
The president has the obligation to faithfully execute the laws under Article II of the U.S. Constitution. However, this duty also implies the power to decide when the laws should be executed, how resources should be used in their execution, and what crimes and civil violations should be given enforcement priority. This power is known as “prosecutorial discretion” and is generally exercised on a “case-by-case” basis in the context of civil law (including immigration law) and criminal law. The Supreme Court of the United States has confirmed that the executive branch has broad leeway in deciding when to initiate or terminate enforcement proceedings.
Critics of executive action protecting the undocumented argue that although case-by-case use of prosecutorial discretion is well-accepted, its broad and categorical use to exempt millions of immigrants from deportation without congressional approval is an abuse of presidential power, as suggested by the court in the DACA litigation. However, such action is not unprecedented. Presidents Reagan and Bush Sr. temporarily exempted more than a million immigrants from deportation pursuant to the “family fairness” policy, which protected family members of undocumented immigrants that were eligible to legalize under a 1986 amnesty law. Later Congress would pass a law protecting these immigrants permanently.
Whatever actions the president takes, they will not have the permanent force of law. The president does not have the power to create new laws, which is the exclusive preserve of Congress. His policies can be overruled by legislation if Congress can overcome his veto or may be changed by the next administration in 2016. Republican leadership may also undermine presidential orders in other ways. Congress may refuse to fund any program President Obama proposes. The House passed a bill defunding DACA in 2013, although it did not pass the Senate. Republicans are also considering using budget negotiations, lawsuits, or possibly impeachment to counter what they consider unconstitutional presidential overreach.
Depending on the scope of the president’s programs, the administration could provide work permits to up to five million undocumented immigrants, a population that is already a significant portion of the workforce in farming; building, grounds keeping, and maintenance; construction; and food preparation and serving. Such a program is expected to help the agricultural and construction industries in particular, which depend disproportionately on undocumented workers. The high-tech, hospitality, and food service industries may also benefit if improvements are made to the legal immigration programs—such as increasing green cards for skilled workers, extending practical training for students, and streamlining lower-skilled visa programs.