In a primetime address on November 20, President Obama made his sales pitch to the American people for a series of immigration executive actions he will sign on November 21 in Las Vegas, Nevada. Here is what you need to know:
What actions is Obama taking specifically?
The key to Obama's new immigration policy is the creation of one new amnesty program and the expansion of another.
Specifically, Obama's new amnesty program will give illegal immigrants who have been in the United States for at least five years, and who are parents of U.S. citizens or legal residents, a three year work permit. This permit will also allow them to obtain a Social Security number and get a driver's license. Pew estimates that 3.5 million current illegal immigrants will qualify for this program.
Obama is also expanding the existing Deferred Action for Childhood Arrivals amnesty program. Previously only those illegal immigrants who were born before 1981 and entered the U.S. as a minor before 2007 were eligible for benefits. Now all illegal immigrants who entered the U.S. as a minor before 2010 will be eligible for amnesty. Like the parents above, DACA recipients will also get work permits, Social Security numbers, and driver's licenses. Pew estimates that 235,00 illegal immigrants will gain eligibility for benefits through this program expansion.
Is this legal?
Obama didn't think so. As recently as this spring, and on more than 20 other occasions, Obama said he could not rewrite immigration law by executive action.
Specifically, this March Obama told Univision, "But what I’ve said in the past remains true, which is until Congress passes a new law, then I am constrained in terms of what I am able to do. ... t at a certain point the reason that these deportations are taking place is, Congress said, ‘you have to enforce these laws.’ They fund the hiring of officials at the department that’s charged with enforcing. And I cannot ignore those laws any more than I could ignore, you know, any of the other laws that are on the books.
More damning, in 2011, Obama told the National Council of La Raza, "Believe me, the idea of doing things on my own is very tempting. I promise you. Not just on immigration reform. But that's not how our system works. That’s not how our democracy functions. That's not how our Constitution is written."
How is Obama justifying this amnesty?
The Office of Legal Counsel memo released before Obama's speech cites Obama's Article II Section 3 constitutional duty to "take care that the Laws be faithfully executed" as the source of his power to grant this amnesty.
The memo reasons that since there are 11.3 million illegal immigrants in the country today, and DHS only has the resources to remove 400,000 illegal immigrants every year, Obama must choose which immigrants to deport and which to ignore. This "prosecutorial discretion" power, the memo claims, allows Obama to choose which illegal immigrants get work permits, which illegal immigrants will continue to be ignored, and which illegal immigrants will be deported.
Under this legal theory, Obama could give all current 11.3 million illegal immigrants work permits and driver's licenses, as long as he kept deporting at least 400,000 illegal border crossers every year.
Will courts let Obama get away with this?
They already have. In 2012, after Obama announced his DACA program, Immigration and Customs Enforcement agents sued the Department of Homeland Security challenging the legality of Obama's first executive amnesty program.
But while the court found that the border agents "were likely to succeed on the merits of their claim that the Department of Homeland Security has implemented a program contrary to congressional mandate," the court also ultimately determined that the plaintiffs did not have standing to sue DHS since the Civil Service Reform Act of 1978 already established an administrative process for resolving disputes between federal employees and their employer.
The harms from Obama's illegal amnesty programs are just too diffuse for any one litigant to establish standing in federal court.
If courts can't stop Obama in time, who can?
Only Congress can stop Obama's amnesty program by defunding it.
Now it is true that since the federal agency that issues work permits, the United States Citizen and Immigration Services office, is self-funded through fees it would keep issuing permits in the event of a federal government shutdown.
But that does not mean Congress does not have any power over the agency. Congress could still attach a rider to any appropriations bill forbidding USCIS from using any federal funds, including those collected through fees, for the purpose of carrying out Obama's amnesty programs.
Will Congress stop Obama?
Some in Congress, like Rep. Matt Salmon (R-AZ) and Sen. Mike Lee (R-UT), have said they will use the power over the purse to defund Obama's amnesty.
Others like House Appropriations Committee Chairman Hal Rogers (R-KY) and Sen. Jeff Flake (R-AZ) have said they want to pass a long-term government funding bill which would essentially rubber stamp Obama's amnesty.
How would Obama's amnesty effect legal immigrants?
After Obama enacted DACA, wait times for visas for legal immigrants tripled from 5 months to 15. Obama essentially allowed illegal immigrants to jump in line in front of law-abiding legal immigrants. Since Obama has requested no new funding from Congress to pay for his new amnesty, and since his new amnesty is three times larger than his last amnesty, legal immigrants should not only expect to head to the back of the line again, but they should also expect much longer delays.
Obama claims all these amnestied immigrants will get background checks, Is that true?
If history is any guide, no. Background checks are expensive and time consuming and USCIS does not have the resources to process additional amnesty programs on top of their normal duties. Judicial Watch uncovered documents in June 2013 showing that instead of full background checks normally used by the agency, DACA recipients got cheaper and less comprehensive "lean and lite" checks.
Obama said illegal immigrants will be held accountable by paying taxes. Is that true?
It is true that the IRS already allows illegal immigrants to pay income taxes by obtaining a tax identification number. Most illegal immigrants also already pay state and local taxes. Obama's amnesty program changes none of this. In fact, Obama's new amnesty lets illegal immigrants of the hook but not paying any fines or penalties for breaking the law.
How will Obama pay for this new amnesty program?
The White House has not explained that yet.
What about Democrats who claim Reagan and Bush also acted unilaterally on immigration?
President Reagan did pass an amnesty program through Congress in 1986, but it failed to accomplish its goals. At the time there were just 3 million illegal immigrants in the country and today there are more than 11 million. This is why most Americans do not support amnesty today.
Reagan also used an executive action to ease immigration standards for 200,000 Nicaraguans who feared persecution from the communist Sandinista regime. President Bush used similar powers to grant deportation relief to hundreds of Kuwaiti nationals who had been evacuated to the United States during the first Gulf War.
But both of these executive actions were perfectly in line with the true scope of a president's prosecutorial discretion powers. They were limited in nature, applied to specific smaller groups of immigrants, and were not designed to thwart congressional intent on immigration policy.
Obama's amnesty is the exact opposite. It is a broad-based program in response to no crisis other than Congress isn't doing what Obama wants it to do. As Obama once said, "That's not how our system works. That’s not how our democracy functions. That's not how our Constitution is written."