President Barack Obama’s lawyers are finishing months of work on a legal rationale for unilateral action on immigration that will have to withstand Republican assaults in the courts and during the congressional election campaign.
With a self-imposed deadline three weeks away, Obama has kept his deliberations closely held, even among White House advisers, while requesting information from staff, according to an administration official. The legal review of his authority hasn’t been presented to Obama yet, the official said.
No announcement is likely until after Obama returns from a trip next week to Estonia and Wales, according to the official, who asked for anonymity to describe internal discussions. Lawmakers and immigration advocates were advised earlier this summer that Obama was seeking to relieve the threat of deportation for millions of undocumented immigrants.
At a White House news conference today, Obama said that proposals for action are “being worked up.”
“Have no doubt,” he added, “In the absence of congressional action, I’m going to do what I can to make sure the system works better.”
The president’s allies are urging him to act boldly, to give Democrats leverage in the November mid-term elections.
“No matter what he does, the right wing is going to go bonkers,” Richard Trumka, president of the AFL-CIO, the largest federation of U.S. unions, said today. “If he goes mild, he’ll energize the right, but won’t energize the center and the left.”
Any broad action would build on a 2012 administration program that deferred deportations for undocumented immigrants brought to the U.S. as children. Lawyers who aren’t in the government said it probably would hinge on the executive branch’s inherent authority to exercise discretion in deciding who to prosecute.
As Obama’s staff has examined options during the past two months, they’ve met with at least 21 groups, including representatives of Hispanic, Irish-American, business, labor, agriculture and gay and lesbian organizations, the White House official said.
The consultations have expanded to include potential presidential actions to issue more visas to high-skill workers in demand by businesses, particularly technology companies such as Microsoft Corp. and International Business Machines Corp.
The presidential action has the potential to ignite passions on a touchstone political and cultural issue in the final weeks of the midterm congressional election campaign. Opposition has been rising to any relaxation of immigration restrictions, particularly among the Republican Party’s most ardent voters, amid a wave of Central American children trying to enter the U.S. illegally.
Representative Steve King, an Iowa Republican, raised the possibility Republicans might force a government shutdown over the issue when the federal fiscal year ends Sept. 30, telling the Des Moines Register that “all bets are off” on a funding agreement if Obama takes unilateral action on immigration.
“If the president wields his pen and commits that unconstitutional act to legalize millions, I think that becomes something that is nearly political nuclear,” King said.
The Republican-controlled House in July passed legislation to block Obama from expanding the 2012 program, known as Deferred Action for Childhood Arrivals, or DACA, and party leaders have signaled they’re prepared to challenge any executive action in court. Republican Senate candidates in Arkansas, New Hampshire and Michigan are airing television advertisements attacking Democratic incumbents for backing a Senate-passed measure that would provide a path to citizenship for undocumented immigrants.
Forty-three percent of Republicans oppose allowing undocumented immigrants who meet certain conditions to remain in the U.S., up from 34 percent in February of this year, according to a Pew Research Center poll conducted July 8-14. Among Tea Party supporters, opposition has grown to 56 percent from 41 percent in February.
Immigration has surged past topics including the economy, unemployment and dysfunctional government, to become the top problem facing the country in the view of Republicans and Republican-leaning independents, according to Gallup polls taken in July and August. Twenty-two percent of Republican supporters ranked immigration the nation’s top issue compared with 11 percent of Democratic supporters.
Obama said on June 30 that he would take action on immigration because the House wouldn’t vote on Senate-passed immigration legislation. He said he asked for recommendations from Attorney General Eric Holder and Department of Homeland Security Secretary Jeh Johnson.
“If Congress will not do their job, at least we can do ours,” Obama said.
The principle of prosecutorial discretion that is likely to be the legal linchpin for Obama’s executive action is firmly embedded in law and has long history in immigration enforcement extending back at least to the 1970s, said Stephen Legomsky, former chief counsel of U.S. Citizenship and Immigration Services at the Department of Homeland Security.
The idea is that Congress knowingly delegates discretion to set priorities in immigration enforcement to the president because it doesn’t provide enough funding to immediately deport all of the estimated 11.5 million undocumented immigrants in the country, Legomsky said.
As far back as the 1970s, immigration officials issued guidelines for deferred deportation that took into account an undocumented immigrant’s age, time in the United States and criminal record, Legomsky said.
Cristina Rodriguez, a professor at Yale Law School in New Haven, Connecticut, and former attorney in the Justice Department’s Office of Legal Counsel, said courts traditionally have been reluctant to intrude on prosecutorial discretion.
Still, she said, given the president’s constitutional duty to “faithfully” enforce the law, the likely legal test “is to think whether his policies achieve the basic aims of the legislation.” For instance, she said, a blanket decision “to halt all deportations” would be legally suspect.
Congress has the power to pass a law that would limit the president’s discretion on immigration enforcement and courts would probably point opponents in that direction, she said.
Trumka said Obama would increase Democrats’ leverage over Republicans by halting deportations for all but violent criminals. Easing deportations would be more important for Obama than other potential changes, such as increasing the number of high-tech workers given legal residency, he said.
“If IBM doesn’t get an engineer because they don’t want to pay the price, or somebody else doesn’t, the world won’t come to an end,” Trumka said. “If they split you up from your children, that’s a tragedy.”
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