Right-wing media are warning President Obama that taking executive action on the immigration crisis after Congress failed to pass immigration reform may spur talk of impeachment. But legal experts have confirmed that the president has broad authority to issue executive orders on immigration.
President Obama Weighs Options For Executive Action On Immigration
Obama Preparing To Announce Executive Action On Immigration. Due to the recent surge of unaccompanied minors across the U.S.-Mexico border and Congressional inaction, President Obama is preparing to use his executive authority, reportedly considering plans to grant temporary relief to some law-abiding undocumented immigrants. According to the Washington Post:
President Obama is preparing to announce new measures that would potentially allow millions of illegal immigrants to remain in the United States without fear of deportation, a politically explosive decision that could jolt Washington just weeks before the midterm elections, according to people who have been in touch with the White House.
Administration officials have told allies in private meetings that both the current surge of Central American children crossing the border and Congress's failure this year to pass a broader immigration overhaul have propelled the president toward taking action on his own by summer's end.
Obama aides have discussed a range of options that could provide legal protections and work permits to a significant portion of the nation's more than 11 million undocumented residents, said Democratic lawmakers and immigrant advocates who have met recently with White House officials. Ideas under consideration could include temporary relief for law-abiding undocumented immigrants who are closely related to U.S. citizens or those who have lived in the country a certain number of years -- a population that advocates say could reach as high as 5 million. [Washington Post, 8/1/14]
Right-Wing Media Warn Of Impeachment Over Executive Action On Immigration
Fox News' Bila: “This President Is Forcing The Impeachment Issue” On Immigration Executive Action. On the August 4 edition of Fox News' Outnumbered, co-host Jedediah Bila claimed that Obama is “forcing the impeachment issue,” adding, “You're talking about executive amnesty to millions of people ... he's forcing us to bring that up because he refuses to enforce the laws as they stand.” [Fox News, Outnumbered, 8/4/14]
Charles Krauthammer: Action On Immigration By Obama Would Provoke “Constitutional Crisis And Stir Impeachment Talk.” In an August 7 editorial for the Washington Post, conservative columnist and Fox contributor Charles Krauthammer suggested President Obama would take unilateral action on immigration to purposely provoke impeachment efforts by Republicans. Krauthammer claimed the move would essentially legalize undocumented immigrants and cause a “constitutional crisis”:
The White House is coy as to exactly what the president will do. But the leaks point to an executive order essentially legalizing an enormous new class of illegal immigrants, perhaps up to 5 million people.
An executive order so sweeping and egregiously lawless would be impeachment bait. It would undoubtedly provoke a constitutional crisis and stir impeachment talk -- and perhaps even the beginning of proceedings -- thus scrambling the electoral deck. As in 1998, it would likely backfire against the GOP and save Democrats from an otherwise certain sixth-year midterm shellacking.
Such a calculation -- amnesty-by-fiat to deliberately court impeachment -- is breathtakingly cynical. But clever. After all, there is no danger of impeachment succeeding. There will never be 67 votes in the Senate to convict. But talking it up is a political bonanza for Democrats, stirring up an otherwise listless and dispirited base. [Washington Post, 8/7/14]
Fox's Napolitano: “Impeach Him” If Obama Delays Deportations. On the August 7 edition of Fox's Your World, host Neil Cavuto asked Fox legal analyst Andrew Napolitano what Republicans should do if Obama takes executive action on immigration. According to Napolitano, if those actions include delaying deportations of undocumented immigrants, Republicans should “impeach him,” adding that the remedy for Obama's behavior “is right there in the Constitution.” [Fox News, Your World with Neil Cavuto, 8/7/14]
Fox's Baier: Some Democrats Think Executive Action On Immigration Would Be “Impeachment Fodder.” On the August 7 edition of Fox News' America's Newsroom, host Bret Baier speculated that Democrats are hopeful that action by Obama on immigration would help them in the midterms by spurring impeachment:
BAIER: Many Democrats think that this action would then be impeachment fodder. And it's interesting -- The Hill has a piece today that Democrats have talked 20-1 more times about impeachment than Republicans. But, they think that, perhaps, this would draw an impeachment from Republicans - impeachment of President Obama - and that would somehow electorally, in the midterms, help them. [Fox News, America's Newsroom, 8/7/14]
Experts Say President Possesses Broad Authority To Act On Immigration
Immigration Expert: Obama Has “Wide Discretion When It Comes To Immigration.” An immigration expert and professor at Cornell Law School told Time that the President has “wide discretion” to take the actions he is apparently considering:
But legal experts say Obama does have the authority to take the kinds of executive action he is thought to be considering. “As a purely legal matter, the President does have wide discretion when it comes to immigration,” says Stephen Yale-Loehr, an immigration scholar at Cornell University Law School. “Just as DACA was within the purview of the president's executive authority on immigration, so too would expanding DACA fall within the president's inherent immigration authority.” [Time, 7/24/14]
The New Republic: Legal Experts Say Obama Has "Broad Discretion" To Take Executive Action On Immigration. Legal experts explained to The New Republic that Obama has broad authority to take executive action on immigration to slow deportations by expanding Deferred Action for Childhood Arrivals (DACA):
“I think there's little serious question that the administration has broad discretion in almost every aspect of the deportation machine,” Michael Wishnie of Yale Law School told me.
Unlike Congress, Obama can't provide a path to citizenship for any of the 11 million illegal immigrants currently in the U.S.--the most he can grant is a temporary reprieve from deportation, like the two-year “deferred action” he made available to Dreamers in 2012. (The order is called Deferred Action for Childhood Arrivals, or DACA.) If he decides to expand that policy, how far can he go? As Hiroshi Motomura of the UCLA School of Law put it, “He would reach political constraints long before he reaches legal ones.” [The New Republic, 3/17/14]
Associated Press: President Can Issue Broad Action On Immigration. The Associated Press explained that legal experts confirm Obama can take broad action on immigration, including delaying deportations:
There are some limits under federal law, and anything the White House ultimately decides to do may be challenged in court as unconstitutional. But leading legal experts say the White House almost certainly could delay indefinitely efforts to deport millions of immigrants already in the U.S. illegally, and it could give them official work permits that would allow them to legally find jobs, obtain driver's licenses and pay income taxes.
Here is what Obama could not do without approval from Congress: He couldn't generally give large groups of immigrants permission to remain permanently in the United States, and he couldn't grant them American citizenship. And he couldn't generally make them eligible for federal or state social benefit programs, such as welfare payments, food stamps or the administration's health care plans.
“There is prosecutorial discretion which can be exercised in these sorts of situations,” said Leon Rodriguez, a former Justice Department lawyer and the newly confirmed director for U.S. Citizenship and Immigration Services. “In most enforcement realms, generally there is pretty broad discretion.” Rodriguez spoke earlier this week on Capitol Hill during an oversight hearing for the House Judiciary Committee. [Associated Press, 8/2/14]
Immigration Law Professor: “No Serious Constitutional” Limitations On Obama's Authority To Take Action On Immigration. In May, a Temple University immigration law professor told the New York Times that Obama has “pretty much complete discretion” in enforcing immigration policy, short of granting amnesty:
“Presidents have pretty much complete discretion when it comes to enforcing criminal and other statutory regimes,” said Peter J. Spiro, who teaches immigration law at Temple University. “President Obama can't start handing out green cards. Short of that, from a legal perspective, there are no serious constitutional or other legal constraints that apply here.”
Instead, the constraints on Mr. Obama are mainly political. [New York Times, 5/17/14]