Can Obama Legalize 11 Million Immigrants on His Own?

It’s now looking extremely unlikely that Congress will enact immigration reform this year. And that raises a question: Could President Obama use his executive powers to effectively legalize some of the 11 million undocumented immigrants already in the United States?

This possibility has actually been raised several times before. Back in August, Sen. Marco Rubio warned House Republicans that if they don’t pass a bill, Obama will act on his own: “I believe that this president will be tempted, if nothing happens in Congress,” Rubio said, “to issue an executive order as he did for the Dream Act kids a year ago, where he basically legalizes 11 million people by the sign of a pen.”

It’s not just Rubio. Immigration reform advocates have been quietly discussing the possibility of executive action on legalization as a “Plan B” if the bill dies. (The White House, for its part, has shown no signs of contemplating any such move.)

So what could Obama actually do for illegal immigrants on his own? A bit, though probably not as much as Rubio suggested. In 2012, the administration was able to stop the deportation of hundreds of thousands of undocumented youths under a deferred-action program. Obama could, in theory, expand that program somewhat, allowing even more current immigrants to work legally in the United States without fear of getting deported.

But, legal experts say, it would be extremely difficult to expand this program to cover all (or even most) of the country’s 11 million undocumented immigrants. And Obama only has the power to defer deportation — he can’t “legalize” immigrants on his own. That’s a key distinction here. True immigration reform ultimately depends on Congress.

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In June, 2012, then-Secretary of Homeland Security Janet Napolitano signed a memo creating the Deferred Action for Childhood Arrivals (DACA) program. This is the program Rubio was referring to.

The DACA program applies to any undocumented immigrant aged 16 to 31 who was brought to the United States as a child, has either graduated from high school or is currently enrolled in school, and doesn’t have a criminal record. The government basically promises not to deport these youths for two years and allows them to work legally in the United States. They don’t get permanent residency or a path to U.S. citizenship, however — as they would have if Congress had passed the Dream Act.

As of June, the administration had received more than 550,000 applications for DACA and approved about 72 percent of them. There are another 350,000 or so youths in the country who likely qualify but either don’t know about the program or can’t pay the $465 application fee.

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The legal rationale for the DACA program was outlined in a letter (pdf) drafted last year by UCLA law professor Hiroshi Motomura and co-signed by nearly 100 top legal scholars around the country. In an interview, Motomura told me that Obama could conceivably expand that program, but there are limits to how far he can go.

“Here’s how I think about it. If the president can make a list to prioritize who should be deported first, then I think it’s clear that he can give people at the bottom of that list a piece of paper saying you’re at the bottom,” Motomura says. “That’s how I think about DACA. It’s clearly within his discretionary power. But if he did this for every single immigrant, he would no longer be exercising his discretion. That would be problematic.”

That means — and again, this is all just in theory — Obama could extend promises of deferred deportation to some additional groups of illegal immigrants. He could try to extend it to domestic-violence victims, say. Or to workers who are bringing civil rights or labor-violation claims. Or to those with disabled children. It’s possible that these moves could cover another couple million undocumented immigrants. But he can’t extend deferral to everyone.

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So far, we’ve just been talking about the legality of an expanded deferred-action program. Whether Obama would actually do this in practice is another question. There are good reasons to think he wouldn’t.

In a leaked 2010 memo (pdf) from the Department of Homeland Security, officials actually considered and rejected the idea. The memo noted that a massive deferred-action program would have an enormous number of downsides. For instance: “The Secretary would face criticism that she is abdicating her charge to enforce the immigration laws.”

The memo also noted that Congress could just block the administration’s actions: “Congress could also simply negate the grant of deferred action (which by its nature is temporary and revocable) to this population. If criticism of the legitimacy of the program gains traction, many supporters of legalization may find it hard to vote against this bill.”

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