On Thursday night, President Obama announced an initiative to shield millions of unauthorized immigrants from deportation. It's the fulfillment of a committment he made months ago to take bold new action on immigration.
What makes this move particularly controversial — even beyond the charge that easing deportations represents a kind of creeping amnesty — is that Obama is largely acting alone. His plan, which amounts to the biggest change in immigration policy in at least two decades, does not require any congressional approval. It's part of his broader effort to strengthen his position as president and continue shaping US policies.
What does the new policy do?
It focuses on families, specifically families with parents who are here illegally but have children who are US citizens or legal residents. If you are one of 4.1 million unauthorized immigrants in this situation who has lived in the country at least five years, the new policy would:
■ Free you from the risk of deportation.
■ Allow you to work legally in the United States.
It would not:
■ Grant you permanent legal status, like citizenship or a green card.
■ Provide health insurance subsidies through the Affordable Care Act.
Separately, the new policy would also expand an earlier initiative called Deferred Action for Childhood Arrivals, or DACA. That program prevented deportations of people who had come to the United States as children. Previously, it only applied to young adults who had arrived before 2007, but it will be expanded to anyone who arrived before 2010.
Can Obama do this without Congress?
On his own, the president can't change immigration law, but he can alter how existing laws are enforced. It's a principle called prosecutorial discretion, and while it may sound pretty legalistic, it's as familiar as everyday driving.
Technically, you're not supposed to drive even one mile per hour above the posted speed limit. But police officers don't spend a lot of time tracking down people doing 26 in a 25. There are just more important things for them to be worrying about.
Obama's immigration plan is based on the same idea. It tells immigration authorities to focus their attention elsewhere and not to deport parents with US-born children. "Felons not families" is how the president put it in his address.
When the president introduced the DACA program in 2012 — that's the earlier change in immigration law that limited deportations of people who came to the United States as children — he relied on the same rationale.
Are there limits to this approach?
One problem with prosecutorial discretion is that there's no clear line between changing how a law is enforced and actually nullifying that law. Imagine that the City of Boston lowered the speed limit on city streets to 25 miles per hour (as New York just did). Could the chief of police tell cops not to enforce the new limit, or would that be interfering with the city's legitimate authority?
Does everyone agree Obama’s plan is constitutional?
Definitely not. House Speaker John Boehner has been trying to organize a lawsuit against the president, essentially charging him with using executive orders to subvert the authority of Congress. For now, the lawsuit is focused on a different executive order — deferring the implementation of a part of the Affordable Care Act — but Boehner has hinted that he may incorporate this new executive order, as well.
Has Obama issued a lot of executive orders?
Not in comparison with previous presidents. In fact, he’s on pace to issue fewer executive orders than any modern president.
Counting up executive orders is a rather limited way to compare presidents, however. Some executive orders are undoubtedly more far-reaching than others. President Dwight D. Eisenhower used an executive order to take control of the Arkansas National Guard and protect nine black children trying to attend a formerly white high school. Abraham Lincoln's Emancipation Proclamation was also an executive order.
The first President Bush used an executive order quite like Obama’s to safeguard certain unauthorized immigrants from deportation. But Bush wasn’t working at cross purposes with Congress. Obama is. And if Obama’s executive orders regularly interfere with the prerogatives of the legislative branch, as Boehner and others have said, it may not matter that he’s issued relatively few.
Are there other paths around Congress?
Last week, the president announced that he had reached a new accord with China to reduce carbon emissions and fight global warming. If the terms of that agreement become binding — and they may, as part of a new global treaty being negotiated in Paris next year — it would represent another presidential end-around, a way of making US environmental policy via international agreement.
As with executive action, this is a well-established power that presidents have. They can use international agreements to set new policies, provided they have the express authority to implement such policies. Sometimes, that authority comes from the Constitution, which gives the president broad powers as commander in chief. Other times, it's because the president has a well-established role in the implementation or enforcement of a particular law.
There are limits to this approach. Were the president to sign an agreement with Canada raising the minimum wage to $15, he probably couldn't make it stick. Setting the minimum wage is not a power he can justly claim. But because new carbon restrictions in the US-China agreement might be met through the Clean Air Act, and because the president is already charged with enforcing the Clean Air Act, he may well be able to use this agreement to shift US environmental policy.
Does this change the president’s status?
In our politics, even presidents who face a hostile Congress in the last two years of an administration have ways of fighting back and possibly winning. Obama clearly has big plans for his final years, and as this announcement on immigration policy shows, the Constitution affords him some pretty powerful tools for getting around congressional roadblocks and implementing those plans.