What President Obama Can and Cannot Do on Immigration

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President Obama’s recent meetings and speeches on immigration have created some confusion over what he can do on his own and what requires congressional action. Activists have been calling Obama to take executive action to slow down his administration’s record pace of deportations. The White House has insisted its hands are tied, and that it is up to Congress to act.  Here is a brief summary of what is within the President’s grasp. For a more detailed take, read this very detailed memo by the Immigration Policy Center

First, what Obama cannot do. He cannot pass comprehensive immigration reform. Only Congress can rewrite our federal immigration laws. Obama’s administration can lean on Congress to take up legislation and pass it, as he did with health care reform. There he leveraged the weight of his office to move members of his party to vote for reform. He could do the same with immigration.

While convincing member of congress, there is plenty President Obama can do to inject humanity and fairness to our dysfunctional immigration system, despite White House protestations to the contrary.

First, like every agency that is charged with enforcing the law, federal agencies have wide discretion to prioritize the laws they enforce. For example, after Sept. 11 various federal agencies shifted large numbers of agents away from other crimes to focus on terrorists. Now, no one accused them then of neglecting the war on drugs or equally serious financial crimes; it was understood the greatest threat to our country was terrorism. And it happens every day. Agencies with finite resources have to decide what merits their attention most urgently.

It just doesn’t make sense to spend so much money and resources rounding up people who are contributing to our economy with their labor, tax dollars and purchasing power. Fortunately, the Obama Administration seems to slowly be waking up to this reality. After recent push back by the state governments of Illinois and California and several cities against the Administration’s so-called Secure Communitiesprogram, the Department of Homeland Security’s Office of Inspector General announced it is investigatingthe program’s implementation. Secure Communities is suppose to identify convicted felons in our jails and prisons who are here undocumented and deport them. But it isn’t working out that way. A majority of the deportations have involved people with no convictions or people who have minor offenses, including traffic citations. And we can’t overlook that money spent on deporting someone with a traffic offense is money not spent on someone with a serious rap sheet.

President Obama should also direct DHS to make participation in Secure Communities optional. Many local police departments object to Secure Communities because they fear it’ll undermine the public’s trust, especially in minority and immigrant communities who will fear calling police who also act as immigration agents. Other departments don’t want to participate because the program is not meeting its objective of targeting dangerous criminals, as is the case in Illinois and California. DHS should allow police to do what’s right for their communities, and not force them to participate in programs that make their communities less secure.

There are other ways DHS can use prosecutorial discretion. President Obama has repeatedly said we shouldn’t deport young people who want to go to college or enlist in the military and qualify for the DREAM Act if it passes. He has also said we should not be separating families. But DREAM students are still being deported and so are parents of citizen children. What is being said in DC is not reaching the field offices. That should change. DHS should clarify for all its field offices the process through which DREAM students and people with strong ties to their communities can apply for deferred action. Deferred action is a type of probation in that it is a temporary protection against deportation, allows people to work and requires them to check in with DHS regularly. Right now, deferments are granted randomly and are a matter of luck and connections. By giving DHS a clear directive and fully exercising his authority to grant deferred actions, President Obama can greatly help alleviate the suffering of young people who are Americans in spirit but lack the nine digit number that proves it.

These proposals are stop gap measures. Ultimately, what the country needs is an immigration system that is equitable, fair and humane. That will take action by Congress. But until then, the President can and should mitigate the injustices and suffering in our communities.

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Blog originally published on May 31, 2011

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