In light of Congressional intransigence to move forward on passing comprehensive immigration reform, President Obama recently announced that he will take unilateral action to address the plight of millions of undocumented aliens here in the United States. An announcement is expected sometime before the end of summer/early fall of 2014. One point of contention, however, is exactly how much power President Obama actually has to accomplish what he professes he wants to do, and what are the limits of that power.
Executive Action vs Executive Orders
An “Executive Action,” loosely speaking, happens fairly regularly, as it is essentially an informal proposal from the President to get something done. Every time the President makes a call to action or asks for Congress to do something, he has taken executive action. Aside from Presidential pressure, however, an executive action does not carry any legal weight or authority unless or until it turns into an Executive Order.
An “Executive Order,” on the other hand, is legally binding and published in the Federal Register. The President’s authority to issue these orders arises out of his role as head of the Executive Branch of our government. While the President cannot make or pass a law unilaterally, he can influence how the law is enforced and implemented via an executive order.
Executive Action Example
On July 8th, 2014, President Obama requested $3.7 billion from Congress. Half of the money would have gone to the Department of Health and Human Services to care for the increasing number of children coming across the border. The rest of the money would have been split between the Department of Homeland Security and the Department of Justice to pay for more immigration judges and to increase law enforcement. Because the President only made a request, there was no legal effect to it, and the money was neither received, nor any actual action taken.
Executive Order Example
On June 15th, 2012, President Obama directed then Department of Homeland Security Director Janet Napolitano to issue a memorandum concerning Deferred Action for Childhood Arrivals (DACA). While the Executive Order did not (and could not) confer legal status or permanent residence, it did mandate that USCIS exercise its prosecutorial discretion to forgo proceedings against qualifying individuals who had entered the US before the age of 16, graduated from high school, and did not otherwise pose a threat to national security. Because all of this arose under the imprimatur of an executive order, it carried full legal effect and has, thus far, proven resilient against congressional action to overturn it.
Overturning Executive Orders
Executive orders can be overturned by the Supreme Court (which has only happened twice, and every President since George Washington has made use of executive orders) or through Congress. Congress can overturn an executive order via legislation which opposes the executive order, though this, in turn, can be vetoed by the President. As such, Executive Orders are a fairly stable and powerful tool in any President’s arsenal to get things accomplished in the face of Congressional inertia.
Possible Immigration Executive Orders from President Obama
Given the impasse in Washington, President Obama has a number of options open to him should he wish to take bold action on the immigration. First, he could expand Deferred Action for Childhood Arrivals (“DACA“) to cover not only children, but also their family members, such as parents. Even better but perhaps more ambitious, he could broaden the eligibility criteria to include adult individuals who have been here for a certain period of time who have no criminal records. If this were to be ordered, DHS would be exercising prosecutorial discretion to defer or not pursue removal proceedings against qualifying individuals; in addition, these grants of deferral could possibly lead to work authorization. Another possible option could be limiting or restricting the Secure Communities program (a program which allows local law enforcement to share fingerprints of arrested individuals with Immigration and Customs Enforcement). Immigration activists have been pressing for a repeal of this program which has led to many people being deported on the basis of arrests which often times don’t even result in convictions. Along the same lines, there may be order to reevaluate current immigration court cases and administratively close those against individuals who lack criminal records and have been in the US for a requisite period of time. Another theory floating out there is the broadening of parole in place, which is currently available to qualifying family members of the Armed Forces and military to a larger segment of the population.
However, what the President certainly cannot do-without the participation and cooperation of Congress–is enact or implement a program that confers permanent residence or US Citizenship. Moreover, it is uncertain what the future holds and whether what, if anything, he mandates by way of Executive Order will be reversed when his administration ends.
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