President Obama is considering a range of executive actions that could potentially shield millions of undocumented immigrants from deportation -- a dramatic step that may not only secure his legacy on immigration, but also shake up an already volatile political landscape before the 2014 midterm elections.
In 2012, the last time Obama took broad executive action on immigration, hundreds of thousands of so-called DREAMers -- immigrants brought to the U.S. as children -- were allowed to remain in the country without fearing deportation. White House advisers say the president is mulling similar options once again, this time expanding protections to as many as 5 to 8 million undocumented immigrants currently living in the U.S.
After a series of failures in Congress around immigration, Obama has said he has no choice but to act alone. And while legal experts say he has the authority as president to take bold steps, offering temporary deportation relief to as much as half the country’s entire population of undocumented immigrants is sure to fan a political firestorm.
"Barack Obama is never running for political office again. He’s in a position to do what he thinks is right or politically expedient, or both," said Bill Rosenberg, professor of political science at Drexel University.
"While they’re out on vacation I’m going to have to make some tough choices to meet the challenge, with or without Congress."'
The potential options Obama is considering remain unclear, pending policy recommendations from Department of Homeland Security Secretary Jeh Johnson and Attorney General Eric Holder later this month. But reports that Obama may extend his 2012 Deferred Action for Childhood Removals (DACA) program to parents of U.S. citizens or DREAMers have already riled many conservatives.
House Republicans have already initiated steps to sue Obama for “executive overstep” and have voted to strip his authority to renew or expand DACA, while baiting him to act on his own to fund the crisis of migrant children crossing the border. Any further steps he takes to expand DACA will cement the belief widely held on the right that Obama wants to grant amnesty to undocumented immigrants in order to ensure an avalanche of future Democrats.
“The president supports the surges in illegal alien children and other illegal aliens coming to our country, again, because he sees this as the equivalent of a Democratic Party voter registration drive,” Alabama Republican Rep. Mo Brooks warned last week, shortly before House Republicans voted to dismantle DACA.
Obama’s executive action could also play out in Republicans’ favor, however, at least for the short-term, Rosenberg said.
“It’s a win-win for everyone,” he said. “Obama gets admonished by people who don’t support him anyway. Then conservatives don’t have to take another vote on the record being anti-immigration.”
The political fallout from any executive action -- expected to land just weeks ahead of the midterms – almost certainly endangers Democratic hopes of hanging onto the Senate. Two vulnerable Democrats -- Sens. Mark Pryor of Arkansas and Kay Hagan of North Carolina -- broke from their party last week by opposing a procedural vote on a border funding package.
Beyond efforts to fund relief for immediate border crisis, any executive action to protect millions living in the shadows from deportation could have dire political consequences for red and purple state Democrats.
“I don’t like government by executive order. I just don’t, generally, so I’d have to look and see specifically what he’s proposing and what he’s talking about,” Pryor told reporters last week. “Overall, I don’t approve of that approach.”
Obama has said repeatedly that executive orders do not serve as a replacement for congressional action. And the limitations he does face are largely political rather than legal, said Kamal Essaheb, an attorney at the National Immigration Law Center.
"Barack Obama is never running for political office again. He’s in a position to do what he thinks is right or politically expedient, or both."'
“The legal case is pretty clear,” Essaheb said. “As long as we’re in the realm of enforcement of immigration laws and prioritization, the president can do a lot more than what he’s doing today.”
Indeed, there are a number of routes White House attorneys could take to legally justify executive action on immigration.
Obama has already overseen as many as 2 million deportations during his presidency, and as a practical matter it’s virtually impossible to deport an entire undocumented immigrant population. Enforcement officials have said in the past that the U.S. simply does not have the resources necessary to deport more than roughly 400,000 in a year, nor does the administration have the political will to uproot families more than it already has.
“We don’t have the will and it doesn’t make sense,” Essaheb said.
Obama has pointed to failed congressional efforts on immigration reform and unwillingness to address the crisis of unaccompanied minors migrating to the U.S. to bolster his claims that he has no choice but to act on his own. The House has refused to vote on a bipartisan immigration reform bill passed by the Senate. And last week, Senate Democrats were unable to advance a $2.7 billion emergency funding bill to address the situation at the border, while House Republicans passed a largely symbolic bill that stood no chance of ever making it to the president’s desk.
“They’re not even trying to actually solve the problem,” Obama said of House Republicans on Friday. “While they’re out on vacation I’m going to have to make some tough choices to meet the challenge, with or without Congress.”
The president does face some limitations. He cannot grant citizenship through green cards or visas. Notably, the options he’s considering do not offer a path to citizenship – they would simply defer deportation proceedings and allow immigrants to work in the U.S. temporarily.
President Obama would be in uncharted waters with virtually any action he takes. While he is hardly the first president to take executive action on relaxing enforcement on the laws Congress creates, DACA was in many ways unprecedented. For the first time, large swaths of undocumented immigrants were offered blanket relief from deportation.
Immigration advocates continue to hail DACA as a major victory. With this new possibility of more relief for undocumented people on the horizon, groups are hoping Obama will redefine his legacy on immigration.
“It is very clear that it is in his legitimate authority to do so. There’s ample room for things that he can do,” said Clarissa Martinez DeCastro, deputy vice president of the National Council of La Raza, the largest Hispanic civil rights group in the U.S.
“This is his shot at redemption.”