Would an Obama immigration order be on firm legal ground?

More than 2,000 immigration rights activists march from the U.S. Immigration and Customs Enforcement headquarters in Washington, D.C., to the White House on Thursday, Aug. 28, 2014, in support of immigration reform and to fight the deportation of families living illegally in the United States.
More than 2,000 immigration rights activists march from the U.S. Immigration and Customs Enforcement headquarters in Washington, D.C., to the White House on Thursday, Aug. 28, 2014, in support of immigration reform and to fight the deportation of families living illegally in the United States. MCT

President Barack Obama is about to flex his muscles on immigration; perhaps, skeptics believe, past the breaking point.

As chief of the executive branch, Obama enjoys considerable authority to act on his own in certain areas, including national security and immigration. His predecessors, Republicans and Democrats alike, have employed similar powers.

But as the representative of only one of three co-equal branches of the federal government, Obama also faces legal and political constraints on his freedom of action. This tension, between unilateral executive authority and multilateral collaboration, will escalate the minute Obama takes action.

Bottom line: Obama can probably do what he wants.

“I think what we’ll be confidently able to do is to explain . . . what legal authority the president is using to take these actions,” White House Press Secretary Josh Earnest said Wednesday.

On Thursday, marked by a prime-time television address, Obama is expected to sign an executive order to give as many as 5 million immigrants living in the United States without legal permission the authority to stay and work here.

Critics will call this an amnesty, and his threat has sparked a wave of outrage and threats from Republicans on Capitol Hill, everything from impeachment and shutting down the government to cooler, less drastic moves like cutting off funds that would finance the president’s intentions.

But amnesty it’s not. Unlike a permanent amnesty, Obama’s action will be confined to his term in office and can be overturned by his successor. Moreover, he apparently won’t say that the specified immigrants cannot be deported. Instead, citing his authority to set executive priorities, the president essentially will direct immigration officials to focus their attentions elsewhere.

It’s called prosecutorial discretion. It’s what happens, for instance, when one administration wants Justice Department prosecutors to focus on drug cases or financial crimes and another administration redirects their focus to counterterrorism.

“The notion of prosecutorial discretion can be traced throughout the length of our history,” noted Christopher Schroeder, the Charles S. Murphy professor of law and public policy studies at Duke University Law School.

He said the practice was “long and robust.”

Speaking at a recent conference at the Federalist Society, a conservative legal organization, Schroeder said that “it is literally impossible to enforce all the laws all the time, so choices are always being made.”

Following Hurricane Katrina in 2005, for instance, President George W. Bush invoked prosecutorial discretion that September to temporarily suspend for 45 days enforcement of employer sanctions.

Bush’s unilateral move enabled employers to hire undocumented immigrants without fear of being penalized. Even after the 45-day period expired, the Department of Homeland Security said in an October 2005 statement that it would “continue to exercise prosecutorial discretion on a case-by-case basis.”

The post-Katrina leniency was followed up two years later, when Bush’s head of Immigration and Customs Enforcement, Julie L. Myers, declared in a Nov. 7, 2007, memo the “importance of exercising prosecutorial discretion when making administrative arrest and custody determinations for aliens who are nursing mothers.”

In other words, Myers was directing immigration officials to leave nursing mothers alone.

Other presidents have imposed far more sweeping policies, as happened throughout the 1960s when some 600,000 Cubans were granted parole. Earnest added that President George H.W. Bush expanded a family program to cover more than 1.5 million unauthorized spouses and children.

“I have no doubt that President Obama has executive branch legal authority to take the expected immigration action,” Leti Volpp, a professor at the University of California Berkeley School of Law, said in an email interview Wednesday. “Every president since 1956 has used executive authority to grant temporary immigration relief to one or more groups in need of assistance.”

The Constitution does not specifically identify whether Congress or the White House has primary responsibility for immigration policy, Congressional Research Service analysts Kate M. Manuel and Todd Garvey noted in a December 2013 assessment.

“I’m still trying to find the place in the Constitution that says if the Congress doesn’t do this, the president can,” Republican Sen. Roy Blunt of Missouri said on the Senate floor Wednesday.

“Statements (Obama) made more than one time show he couldn’t find it, either,” Blunt said.

In a Telemundo interview in September 2013, for example, Obama said that if he were to broaden an exception he made in 2012 for the children of undocumented immigrants, “then essentially, I would be ignoring the law in a way that I think would be very difficult to defend legally.”

Similarly, in a February 2013 Google Hangout, Obama said he was “not the emperor of the United States. My job is to execute laws that are passed.”

Obama nonetheless invoked similar prosecutorial discretion in 2012, with the policy called Deferred Action for Childhood Arrivals. The policy effectively meant immigrant children brought illegally to the United States would not be targeted for deportation.

Tellingly, legal challenges to Obama’s 2012 deferred action move failed in federal courts in both Texas and Florida, keeping in place the president’s decision not to remove young immigrants from the United States.

“A principal feature of the removal system is the broad discretion exercised by immigration officials,” Supreme Court Justice Anthony Kennedy wrote in an unrelated 2012 court case out of Arizona. “The removal process is entrusted to the discretion of the federal government.”

Lindsay Wise of the Washington Bureau contributed to this report.