President Obama to Bypass Congress And Defer Deportations for 5 Million

November 13th, 2014

The NY Times reports what has long been rumored to happen–the President is going to excuse five million people from the enforcement of the immigration laws.

President Obama will ignore angry protests from Republicans and announce as soon as next week a broad overhaul of the nation’s immigration enforcement system that will protect up to five million undocumented immigrants from the threat of deportation and provide many of them with work permits, according to administration officials who have direct knowledge of the plan.

Asserting his authority as president to enforce the nation’s laws with discretion, Mr. Obama intends to order changes that will significantly refocus the activities of the government’s 12,000 immigration agents. One key piece of the order, officials said, will allow many parents of children who are American citizens or legal residents to obtain legal work documents and no longer worry about being discovered, separated from their families and sent away.

That part of Mr. Obama’s plan alone could affect as many as 3.3 million people who have been living in the United States illegally for at least five years, according to an analysis by the Migration Policy Institute, an immigration research organization in Washington. But the White House is also considering a stricter policy that would limit the benefits to people who have lived in the country for at least 10 years, or about 2.5 million people.

I have rejected the notion that it is within the President’s discretion to offer such wide-ranging relief from the immigration laws. See my article, Gridlock and Executive Power, and my recently-updated essay, The Gridlock Clause.  At this point he is not enforcing the laws with discretion, but not enforcing them at all. It strains credulity to suggest that the only people subject to the laws are those who the President deems dangerous. That goes far beyond the argument that Congress only appropriates a small amount of money for a small number of deportations. The President doesn’t agree with the law Congress passed, and the fact that Congress wouldn’t give him what he wants, so he is doing it anyway.

What is the legal basis here? We’ll find out soon enough, but it is “unassailable.”

Most of the major elements of the president’s plan are based on longstanding legal precedents that give the executive branch the right to exercise “prosecutorial discretion” in how it enforces the laws. That was the basis of a 2012 decision to protect from deportation the so-called Dreamers, who came to the United States as young children. The new announcement will be based on a similar legal theory, officials said.

The White House expects a chorus of outside legal experts to back it up once Mr. Obama makes the plan official. In several “listening sessions” at the White House over the last year, immigration activists came armed with legal briefs, and White House officials believe those arguments will quickly form the basis of the public defense of his actions.


Officials said one of the primary considerations for the president has been to take actions that can withstand the legal challenges that they expect will come quickly from Republicans. A senior administration official said lawyers had been working for months to make sure the president’s proposal would be “legally unassailable” when he presented it.

I wasn’t invited to any of these “listening sessions.”

Further, it is not the case that Congress is gridlocked on such a wide-ranging blanket exemptions:

Many pro-immigration groups and advocates — as well as the Hispanic voters who could be crucial for Democrats’ hopes of winning the White House in 2016 — are expecting bold action, having grown increasingly frustrated after watching a sweeping bipartisan immigration bill fall prey to a gridlocked Congress last year.

But unlike DACA, which missed cloture by one vote, there is no Congressional support for such wide-ranging exemptions. As I wrote in National Review yesterday:

If President Obama expands this non-enforcement to five, six, seven, or eight million immigrants, in the absence of enabling legislation and in the face of congressional opposition, it would stand as a repudiation of his oath to take care that the laws are faithfully executed. The chief executive may not frustrate the laws he dislikes simply by choosing not to enforce them — especially when Congress is on record opposing that change. While the vote on the DREAM Act was quite close, blanket amnesty would be a political non-starter. Here, in the words of Justice Robert H. Jackson in the landmark separation-of-powers case Youngstown Sheet & Tube Co. v. Sawyer, the president’s inherent powers are at their “lowest ebb.”

Finally, the fact is that once these five million people are granted status, no future President will be able to remove it. Call it immigration estoppel. As I wrote in National Review:

While they were not granted formal amnesty, as a matter of policy, future presidents will be hard-pressed to tamper with their “temporary” status.

The Times alludes to this fact. First, the President seems to think this broad-ranging executive action will push Republicans to act.

But the president and his top aides have concluded that acting unilaterally is in the interest of the country and the only way to increase political pressure on Republicans to eventually support a legislative overhaul that could put millions of illegal immigrants on a path to legal status and perhaps citizenship. Mr. Obama has told lawmakers privately and publicly that he will reverse his executive orders if they pass a comprehensive bill that he agrees to sign.

That’s rich. Second, even if Republicans don’t act, a future President will be unable to roll back this status:

Although a Republican president could reverse Mr. Obama’s overhaul of the system after he leaves office in January 2017, the president’s action at least for now will remove the threat of deportation for millions of people in Latino and other immigrant communities. Immigration agents are to instead focus on gang members, narcotics traffickers and potential terrorists.

Short of a blocking the budget, and causing a shut down, I don’t see how this program is stopped. In truth, I don’t even think a shutdown would stop it, because the President would continue not to enforce the law. But his AG candidate may very well not be confirmed. I’m not sure if that is a big enough cudgel.