Is Obama's immigration action legal? A Q&A.

Republicans say President Obama's executive action on immigration violates the Constitution. This Q&A explores the legal and political questions raised by the move.

The Explainer

President Obama has announced that he will use his executive authority as president to allow nearly 5 million illegal immigrants to remain in the US without facing the threat of deportation.

That is nearly half of the estimated 11 million illegal immigrants currently in the country.

Republican leaders in Congress accuse Mr. Obama of failing to faithfully enforce US immigration laws and of plunging the country into a constitutional crisis.

Democrats maintain that the president is well within his authority to exert “prosecutorial discretion” in a way that shields large numbers of would-be immigrants from deportation.

What is 'prosecutorial discretion' and how does it relate to the enforcement of US immigration laws?

Under the Constitution, it is up to Congress to make laws, and it is the responsibility of the executive branch to faithfully enforce those laws.

Existing immigration law makes clear that those who arrive in the US illegally or who overstay their visa are subject to deportation. Estimates are that 11 million people are currently in this deportable category.

The basic idea of prosecutorial discretion is that a cop can’t be expected to enforce every law against every law breaker. Since there aren’t enough cops, prosecutors must exercise discretion and set enforcement priorities.

While some members of Congress favor strict enforcement of immigration laws, including stepped up deportations, the Obama administration since 2011 has sought to focus deportations on those illegal immigrants who have committed serious crimes. 

The Obama administration says it is not rewriting the law, it is merely setting enforcement priorities.

A comprehensive immigration reform bill that passed the Senate last year would offer a pathway to citizenship for many of the immigrants affected by Obama's new executive action. But the bill has not been taken up in the House.

Is the president granting the equivalent of amnesty to illegal immigrants?

No. He is exercising discretion to defer enforcement action on a number of illegal immigrants who are otherwise eligible for deportation. He is not granting them legal resident status. He is merely moving them to the back of a very long line of potential deportees.

US immigration law, as currently written, grants this discretion to executive officials to take such “deferred action.”    

But executive action does not carry the weight of a bill passed by both houses of Congress and signed by the president. A mere executive action can be reversed with the stroke of a pen wielded by Obama or a new president.

How does the president’s executive action compare to the relief granted in 2012 to the so-called Dreamers?

Two years ago, Obama took nearly identical action. He extended protections from deportation and allowed for the granting work permits to up to 1.2 million “Dreamers,” who came to the US with their parents as young children and have remained. Thursday’s action extends the protection from deportation to an additional 4 million illegal immigrants and increases the time-frame for that protection from two years to three years.  

Among the newly-covered are an additional 700,000 Dreamers, and 3.3 million parents of a child who is a US citizen or a legal resident.

How can the president grant work permits for a class of individuals who are not legally authorized to be in the US?

Federal immigration law, as currently written, permits the secretary of Homeland Security to issue work permits to any illegal immigrant granted deferred action from deportation.

As of Thursday night, some 5 million illegal immigrants have now been granted deferred action status by the president. In response, federal immigration law clearly authorizes the Homeland Security secretary to issue work permits – in this case up to 5 million of them. 

Of the 5 million illegal immigrants covered by the president’s executive action, how many will come forward to apply for deferred action status and claim a work permit?

That remains unclear. The president’s action is designed to encourage people who have been living illegally in the US to “come out of the shadows.” But it does not shield them from potential prosecution for identity theft or Social Security fraud. Those who are using a false identity to remain in the country might lose their job.

Of the 1.2 million Dreamers granted deferred action status in June 2012, only half – or roughly 600,000 – have so far come forward.

Have other presidents taken similar executive action in immigration cases?

Presidents Kennedy, Reagan, George H.W. Bush, and George W. Bush all used their executive authority to defer immigration enforcement against a class of non-citizens. But unlike Obama, each of those presidents was acting with the support of Congress rather than in defiance of congressional leaders.

The bottom line, however, is that immigration statutes – passed by Congress – authorize the president to use broad discretion.

What has the US Supreme Court said about the extent of presidential power when the executive branch acts on its own without congressional approval?

In a landmark 1952 case, the high court delivered an historic rebuke to then-President Truman amid his attempt to take over private steel mills during the Korean War.

Rather than working with Congress or within terms of an existing statute, Truman claimed the White House alone had the power necessary to seize and run the private mills.

The court said Truman overstepped his constitutional and statutory authority.

In an often-quoted concurring opinion, Justice Robert Jackson said presidential power is at its maximum when the president works pursuant to an express or implied authorization of Congress.

In contrast, he said: “When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.”

Current immigration statutes permitting broad presidential discretion suggest the president is acting within his authority.

More recently, in a 2012 decision in a case called Arizona v. United States, the Supreme Court acknowledged this wide latitude.

“A principal feature of the removal system is the broad discretion exercised by immigration officials,” the court said.

Given Congressional opposition, how might lawmakers try to limit the president’s use of executive discretion?

Beginning next year, the Republican-controlled House and Senate could pass their own version of comprehensive immigration reform and see if the president is willing to sign it or negotiate an acceptable compromise.

 Congress might refuse to approve any presidential nominations until Obama rescinds his executive action.

The House of Representatives and the Senate could amend US immigration law to eliminate executive discretion in this area and repeal authorization to issue work permits. But Obama is likely to veto such a law. It is not clear whether Republicans in Congress could assemble the necessary votes to override a veto.

Congress might tack riders onto the Department of Homeland Security’s appropriations bill. This is what Congress has done to counter Obama’s plan to close the terror prison camp at Guantànamo by bringing Al Qaeda suspects to the US for trial and detention. For several years, a Defense Department appropriations rider has barred the use of federal funds to bring any Guantànamo detainee to the US.

In the context of immigration, a rider might be attached to the Homeland Security appropriations bill barring the use of federal money to support the issuing of deferred action status to illegal immigrants – including issuing work authorization cards.

This action may not be effective, however, since the immigration program is designed to function almost entirely on self-generated fees. But even if effective barriers could be erected, they would likely draw a presidential veto.

Does Congress have any legal recourse?

It is unclear whether individual members of Congress would have legal standing to file a lawsuit. To establish standing, senators and House members must be able to demonstrate that they have suffered a personal, concrete injury, rather than merely a policy disagreement. Some legal analysts have suggested a potential lawsuit challenging the president’s actions on grounds that it violates the Constitution’s required separation of powers.

Texas and Oklahoma have pledged to file lawsuits challenging the president’s executive action on immigration. The Texas suit is expected to ask a federal judge to find that the president’s unilateral actions violate Article I, Section 8, of the Constitution, which assigns to Congress the exclusive power to “establish an uniform Rule of Naturalization.”

The suit will also argue that President Obama is failing to abide by the Constitution’s command that the president “take Care that the Laws be faithfully executed.”

How might the administration respond in court?

Government lawyers will argue that the president is fully authorized to take executive action both by the Constitution and within immigration law. All presidents are entitled to exercise discretion when deciding how best to execute the laws, and Obama is no different.

Are there any limits on the president’s ability to use executive discretion to pursue his own immigration policy?

Administration lawyers suggest that one constraint is that any deferred action must be undertaken on a case-by-case basis, not in a single wholesale decision. That provides a safeguard against abuse of discretion by the president, they argue.

Critics counter that it remains unclear at what point executive discretion crosses the line and becomes an unlawful abdication of president’s duty to enforce the law.

What other recourse is available to Congress?

Congress could refuse to allocate any money to the executive branch and force a government shutdown until the president rescinded his action.

Congress could also undertake impeachment proceedings.

Republican leaders have said they will not pursue either of these courses of action.