Obama's immigrant reform action – what it means
PHOENIX — President Barack Obama outlined his executive actions on immigration reform in a speech Thursday night. Here are answers to some questions many people are asking.
What do these executive actions actually do?
Broadly speaking, Obama is taking action in three areas, affecting a total of about 5 million people.
1. Deferring deportations: The president will announce that he is expanding one program and creating a second that will allow up to about 4.3 million undocumented immigrants to be protected from being deported for three years. That comes on top of about 700,000 "dreamers," youths brought here as children, who already have qualified to stay under the 2012 Deferred Action for Childhood Arrivals program.
The new deferral program will apply to any undocumented immigrant who has been in the United States longer than five years and is the parent of a U.S. citizen or legal permanent resident. Applicants must pass a background check that would show they have not been convicted of a felony or certain misdemeanors. A senior official said the administration expects that more than 4 million people would be eligible.
The current deferred-action program defers deportation against immigrants brought here before Jan. 1, 2007, who were 15 or younger, were 30 years old or younger as of June 15, 2012, and have not been convicted of a felony or major misdemeanor crime (including burglary, DUI, domestic violence, or drug distribution). Obama is expanding deferred action to include those brought here before Jan. 1, 2010, and by removing the age cap. A senior administration official said about 270,000 more people would be eligible for deferral under the expansion.
2. Redefining priorities for Immigration and Customs Enforcement: A senior administration official said that a new policy will have ICE officials focus more sharply on deporting people with felony criminal convictions, those considered a threat to national security and those who have crossed the border recently. "An arrest for a broken tail light alone will not trigger a detainer from ICE," a senior administration official said.
3. Streamlining the visa application process: It will increase some categories of visas, for example, to make it easier for entrepreneurs who want to invest money and create jobs here to get visas. Another change will make it easier for those on student visas studying science and technology to remain after graduation for training and work opportunities. The administration will create an interagency task force to recommend other ways to streamline visa applications.
What don't the executive actions do?
These executive actions do not offer permanent residency or a pathway to citizenship for those who are granted deferrals. They do not offer deferral of deportation to the parents of undocumented immigrants who do not have children with U.S. citizenship or permanent residency. They do not offer any relief to families or children from Central America who crossed the border earlier this year.
Will those affected receive federal benefits?
No. While those granted deferrals are permitted to work and pay taxes, they do not qualify for public assistance. That is not expected to change in the actions announced Thursday.
What is an executive action? Is that the same as an executive order?
An executive order is a presidential directive that has the force of law. It is issued to and binding on the executive branch and is published in the Federal Register. Every president since George Washington has issued executive orders, and they repeatedly have been upheld by the U.S. Supreme Court as valid under the president's constitutional power. They do not require congressional approval. Obama has issued 193 executive orders, fewer per year than any president since the first term of Grover Cleveland (1885-89), according to the American Presidency Project at the University of California-Santa Barbara.
Executive actions are not as clearly defined legally. Such actions can include statements of policy by the president (including setting policies on how laws will be enforced) and interpretations of regulations. The American Presidency Project has records of executive actions dating to 1789, though they are more common over the past 50 years, starting with Richard Nixon's presidency in 1968.
A 1999 report by the Congressional Research Service noted that "because the Framers of the Constitution left the question of executive authority open to interpretation, there has been much confusion and controversy since the first proclamation was issued by George Washington."
The CRS noted that the president's power to issue orders, proclamations or other actions "is neither explicitly stated in the Constitution nor in statute. However, it is generally accepted that the President derives his authority from Article II of the Constitution … (which states that) the executive power shall be vested in a President of the United States."
Courts have oversight over executive actions by determining whether they are legally valid, and Congress can pass legislation to support or derail legislative action "unless that action is firmly based on exclusive constitutional authority," the Congressional Research Service concluded.
Is Obama's executive action legal?
Even before Obama announced the specific details of his executive action Thursday, Republican leaders attacked him as "a rogue president … disregarding the rule of law" (Rep. Paul Gosar, R-Ariz.), and his executive action as "unconstitutional and illegal" (Rep. John Cornyn, R-Texas). Rep. Matt Salmon, R-Ariz., called it "an impeachable offense," making him one of at least five Republican members of Congress to air that notion.
Thursday's executive action is not Obama's first. It follows his earlier action known as Deferred Action for Childhood Arrivals, which defers the deportation of undocumented youths brought here as children. Obama himself, in a September 2013 interview with Telemundo, said that he didn't plan to expand deferred action to other immigrants because "if we start broadening that, then essentially I'll be ignoring the law in a way that I think would be very difficult to defend legally."
On Thursday, though, administration officials said that attorneys from the Department of Justice and Department of Homeland Security determined that the new actions also are fully within Obama's legal authority.
Legal scholars across the political spectrum agree that Obama's actions deferring deportations are fully within the scope of his legal authority and that as president he has wide latitude on how to enforce immigration laws.
Actions such as temporary reprieves "are part of the prosecutorial discretion that the president must exercise as the executive branch official ultimately in charge of enforcing immigration laws," said Hiroshi Motomura, a professor at the UCLA School of Law and the author of four books on immigration law.
Are there precedents for Obama's executive action on immigration?
Yes. Presidents Ronald Reagan, George H.W. Bush, Bill Clinton and George W. Bush all issued executive actions that deferred deportations of immigrants. Their actions did not extend to as many people as the one Obama announced Thursday; however, the legal basis for the prior executive actions was the same as in this case: that the administration, given limited resources, has the legal discretion to decide where to focus enforcement efforts.
Does Obama's executive action derail the likelihood of Congress passing a comprehensive immigration reform bill?
Probably not. House Speaker John Boehner, R-Ohio, said on Nov. 6 that if Obama acts on his own, "he will poison the well, and there will be no chance for immigration reform moving in this Congress." But there has been no indication that the House of Representatives would act in any event. The comprehensive immigration-reform bill passed by the Senate in June 2013 has languished in the House for nearly a year and a half. And at that same Nov. 6 news conference, Boehner told reporters that even if Obama agreed not to take any executive action, he couldn't guarantee a House floor vote on immigration reform.