President Obama says he cannot use his executive power to end all deportations. But can he act alone to stop some of them?
On Monday, Obama was cut off during a speech in San Francisco by an undocumented immigrant who said he has the “power to stop deportation for all.” Obama replied, “Actually, I don’t.”
The president is right. He lacks the legal authority to stop all deportations. Existing immigration law calls for deportation of non-citizens who violate immigration or criminal law.
But the executive branch does have leeway in how it enforces those laws, through what’s called “prosecutorial discretion.” Immigration-reform advocates believe that President Obama can use that discretion to shield certain classes of undocumented immigrants from deportation.
Regardless, the likelihood that Obama acts on his own to halt deportations could depend as much on politics as it does the law.
The White House has said repeatedly that no executive action could substitute for a comprehensive immigration reform law passed by Congress. For example, the president cannot unilaterally provide a way for undocumented immigrants to earn U.S. citizenship or make changes to how many visa are granted.
But with immigration stalled in Congress, the White House has not ruled out taking executive steps in the future to address certain aspects of immigration system.
“I don't want to speculate about what sort of actions the president might or might not take,” White House spokesman Josh Earnest told reporters on Tuesday. “But we have been very clear that the problem that the president is trying to solve here is one that can only be solved by Congress.”
Marielena Hincapie, the executive director of the National Immigration Law Center, believes that the Obama administration should consider granting relief to certain undocumented immigrants, such as workers who have lived in the U.S. for many years and those who are primary caregivers.
"Just as with federal legislative reform, we are looking to reform our laws to make relief as broad as possible,” Hincapie told Fusion. “We have 11 million undocumented immigrants here. How do we get Congress to pass a bill or how do we get the administration to change its administrative policies to encompass the largest group of people possible?”
Immigrant advocacy groups argue there is strong precedent for expanding deportation relief.
Last year, the Obama administration ruled that Dreamers, young undocumented immigrants brought to the U.S. as children, could apply for a reprieve from deportation. This year, the administration announced that certain relatives of U.S. military service members would not face deportation.
And the administration issued a memo in August directing Immigration and Customs Enforcement (ICE) to consider whether a non-citizen is a parent or legal guardian of a child living in the U.S., regardless of immigration status, before deporting them.
Reform activists say a sense of urgency is behind their desire for executive action. The Obama administration removed almost 410,000 undocumented immigrants in 2012 alone. That’s even as the administration directed ICE not to pursue cases related to non-criminals with strong work or family ties to the U.S.
Fifty-five percent of deportees have been convicted of crimes, according to ICE.
“The administration has taken a series of steps to focus our resources and make immigration enforcement more strategic,” said a White House official, who declined to be named. “But ultimately, until the law is changed, we will enforce the laws that are on the books.”
UCLA law professor Hiroshi Motomura believes Obama is on sound legal ground in taking executive action to protect certain groups from deportation who are considered low priorities for removal, like military family members and Dreamers.
But if Obama expands relief too broadly, he could cross the line.
"I think he can go quite a bit further than DACA itself,” he said. "But as [relief] gets more and more broad, it gets harder to argue for the president that he is serious about enforcement, but is being judicious about it."
Opponents of Obama’s immigration policies say he’s abused his prosecutorial discretion by enacting programs like DACA, and an extension of it would be a further violation of the law.
“The president obviously has the authority to use prosecutorial discretion, but not to abuse it,” said Mark Krikorian, executive director of the Center for Immigration Studies, a group that advocates for decreased legal and illegal immigration. “Granting status to entire classes of people, rather than using discretion as intended on a case-by-case basis, is the very definition of abusing prosecutorial discretion.”
But ultimately, the decision might be a political one. If he acts unilaterally now, Krikorian said, it would doom whatever slim chances exist for an immigration overhaul to pass through the House, which has yet to vote on a bill.
Republicans, who control the lower chamber, have already voted to defund the DACA program on the argument it's illegal. Any effort to expand it would ignite tensions between Obama and the GOP even further.
"Right now it's more of a political question,” of whether Obama will act alone, Hincapie added. “There is still a permanent solution in Congress' hands.”
Jordan Fabian is Fusion's politics editor, writing about campaigns, Congress, immigration, and more. When he's not working, you can find him at the ice rink or at home with his wife, Melissa.