The fence marking the border between Mexico and the United States is seen in the Anapra neighborhood of Ciudad Juarez, 2014.
The fence marking the border between Mexico and the United States is seen in the Anapra neighborhood of Ciudad Juarez, May 23, 2014.
Jose Luis Gonzalez / Courtesy Reuters

With the Republican takeover of Congress clouding the prospects for swift immigration reform, U.S. President Barack Obama is poised to issue an executive order that will provide temporary reprieve for five million undocumented immigrants, removing the threat of deportation and authorizing work permits for many of them. Among likely measures in the order are an extension of the cutoff date from June 2007 to January 1, 2010, for eligibility to stay in the United States under the Deferred Action for Childhood Arrivals and the provision of safe harbor for the parents of children who are American citizens or legal residents. The first initiative could help a million people and the second between 2.5 million and 3.3 million people. Obama is also reportedly prepared to provide thousands of new visas for high-tech workers, to redeploy immigration enforcement officers and resources from the nation’s interior to the border, to revise the controversial Secure Communities enforcement program that many blame for the record level of deportations under this administration, and to consider measures to help the hundreds of thousands of unauthorized long-term agricultural workers who live in the United States now.

At the same time, the White House plans to focus on deporting convicted criminals, those who present a threat to national security, and recent border crossers, including the unaccompanied minors and families who flooded the southern United States last summer. In addition, his plan to increase family detention for recent arrivals continues apace.

Although Obama’s order will allow immigrants to emerge from the shadows, it will not modify their legal status or provide permanent relief. That is, this will not be a pathway to citizenship. Obama’s successor can easily retract his policy. A substantive and permanent change would have amounted to lawmaking, a task reserved for Congress—although not one Congress has been able to carry out on immigration. Last year, a bipartisan group of eight senators introduced comprehensive immigration reform legislation. It passed the Senate by more than two-thirds majority, but resistance from conservative lawmakers in the House derailed the process. Obama made the political calculation that it would be best to delay executive action on immigration until after the midterm elections. (According to some observers, however, including former President Bill Clinton, the move may have ended up costing the Democrats seats, as some disaffected Latinos chose to sit out the election.)

Even before Obama officially unveiled his plan, the GOP backlash was swift and vitriolic—although far from monolithic in its proposed response. The Tea Party camp threatened to block the upcoming general spending bill, which could lead to a government shutdown. The GOP leadership prefers a more measured response, tempered in part by concerns about its standing with Latino voters, who overwhelmingly support immigration reform. Republicans in this group would rather use their new congressional majority to chip away at the edges of what they denounce as “executive amnesty,” and they have cautioned Obama that any unilateral action will poison future bipartisan negotiations about immigration and other pending issues.

So far, criticism of the forthcoming executive order has centered around the idea that Obama plans an unconstitutional power grab. That denouncement is off base. His action is within the bounds of the law because it focuses on changes to the administration’s enforcement priorities, redirecting attention to those who most threaten U.S. interests, including lawbreakers and, apparently, recently arrived women and children. After all, the White House simply cannot deport all 11 million undocumented immigrants, so it can and must set priorities, just like law enforcement officials at all levels of government. Obama’s planned action isn’t even that unusual. As the Immigration Policy Center has pointed out, “Since at least 1956, every U.S. president has granted temporary immigration relief to one or more groups in need of assistance.” 

That doesn’t mean that Obama’s executive order deserves no criticism. It will provide much needed and long overdue humanitarian relief to some law-abiding undocumented immigrants with long-standing community ties in the United States. But it will do nothing for the unaccompanied minors and families whose desperate flight to the United States last summer may have finally pushed the White House to act.

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  • LAUREN CARASIK is Clinical Professor of Law and Director of the International Human Rights Clinic at Western New England University School of Law.
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