What Obama Can — And Cannot — Do On Immigration By Executive Action
SAHIL KAPUR – MAY 26, 2014, 6:00 AM EDT
Amid fading prospects for immigration reform in Congress, President Barack Obama has signaled he'll take executive action on enforcement to ease the burden for certain people in the country illegally who don't have criminal records. On his order, Homeland Security Secretary Jeh Johnson is conducting a review of U.S. enforcement policies in order to determine how to implement the law in
the smartest and most humane way.
Immigration lawyers generally agree that the president has broad legal authority when it comes to prioritizing who to deport. There is debate, however, about how far he can go in formally granting relief and work authorization to undocumented immigrants. Department of Homeland Security officials emphasize that no decisions have been made and a variety of options are under consideration.
One area where DHS feels confident in its authority to act is the prioritization enforcement resources, sources familiar with the matter say. Under the legal theory of "prosecutorial discretion," the department could decide, for instance, to prioritize removal of dangerous criminals who pose serious safety threats, such as gang members, drug dealers and repeat offenders. It could in turn de-prioritize action against those who have not committed crimes, (or committed lower-level crimes like DUIs) and steer resources away from those who have family ties in the U.S. and have lived here for a certain period of time.
Under this approach, undocumented immigrants would technically remain subject to deportation. They'd simply be less likely to get picked up by the system.
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