Obama Actions on Immigration are Lawful, Limited, and Restrained — and Advance Democracy

Congressional Gridlock, Dysfunction Have Created a Crisis the President Can't Ignore, Common Cause Asserts

President Obama’s executive actions on immigration are lawful, limited and restrained steps toward fixing an immigration system that is demonstrably broken, unjust and unenforceable.  They attempt to make good on the promise of a democracy founded by immigrants.  They will allow millions of families to emerge from the shadows and become full participants in our economy and our society, and build on the fundamentally American impulse and democratic principle of welcoming new immigrants and appreciating their contributions to our culture and economy. 

Congress enacted major reform of our immigration laws in 1986, but has failed to act for almost 30 years since then to keep pace with our rapidly changing society.  While the Senate finally passed a bill earlier this Congress, the House of Representatives has done nothing.  As a result, undocumented workers – now an estimated 5.2% of the workforce – remain in the shadows while paying taxes and contributing to the economy, without much-needed and long-overdue protection from exploitation and mistreatment.  Random deportations tear apart families with children who have lived here lawfully for years, with little or no impact on the growing deportation backlogs that are drowning our courts and keeping families in limbo for an average of 550 days. 

Congressional gridlock and dysfunction have created a crisis in America’s immigration system that the President can’t responsibly ignore.  By issuing the executive orders announced on November 20, President Obama is acting within his constitutional authority to set priorities on how limited public resources at his disposal should be used to promote fair and efficient enforcement of our immigration laws.  Last year, the Department of Homeland Security deported just 3% of the 12 million undocumented persons residing in the country (a record high in deportations), despite huge increases in its enforcement budget.  As an agency with finite resources, prosecutorial discretion allows DHS to set priorities as to who should be deported in order to best promote the general welfare and safety of the United States. 

The President’s authority to issue executive orders on immigration is limited in scope and grounded firmly in our Constitution and immigration law.  The actions taken must be reasonable, temporary, and cannot nullify a directive from Congress.  This is not an amnesty.  Only Congress has the power to reform our laws and provide permanent relief to the millions of undocumented immigrants in this country. 

Common Cause’s legal team and the National Governing Board’s Policy Committee have carefully reviewed the executive actions proposed by President Obama, and conclude that they fit within those legal constraints.  In the face of economic instability, injustice and inefficiency caused by our outdated immigration system, the President has acted to prioritize a limited enforcement budget while respecting democratic principles of fairness and nondiscrimination. This is a lawful exercise of the President’s prosecutorial, enforcement discretion in executing our immigration laws.  His orders are not a substitute for Congressional action and are by their nature temporary and incomplete.  Our legal team’s full analysis is available at www.commoncause.org/policy-and-litigation/executive-action-on-immigration.pdf. The Department of Justice laid out the same conclusions in its thoughtful and detailed opinion memo. 

President Obama’s executive actions are in keeping with a narrow scope of presidential power, fit within the framework and history of immigration law, and do not override any Congressional mandates or requirements under existing immigration law.  As such, they do not set a precedent for future presidents to refuse to enforce or nullify laws duly enacted by Congress. The executive actions follow fundamentally democratic doctrines that should not be overshadowed by partisan political wrangling.  

The President’s action provides no basis for impeachment and no cause for inflicting on the American people even more of the partisan gridlock that got us into the immigration crisis in the first place.