Nov. 18, 2014

As early as next week, President Barack Obama is expected to issue an executive order to grant amnesty to millions of illegal immigrants, a use of power that would be unprecedented in U.S. history.

 

According to The Washington Post, presidents for the last 40 years have had broad authority over how the country deals with illegal immigration.

 

But Obama's intent to bypass Congress and make new laws could be an outright violation of his constitutional oath to "take care that the laws be faithfully executed," the Post said.

 

"Can a president who wants tax cuts that a recalcitrant Congress will not enact decline to enforce the income tax laws? Can a president effectively repeal the environmental laws by refusing to sue polluters, or workplace and labor laws by refusing to fine violators?" wrote  Robert Delahunty, a law professor at the University of St. Thomas, and University of California Berkeley law professor John Yoo in the

Texas Law Review.

 

In 2011, Obama effectively admitted he was prohibited to act, saying in an interview, "This notion that somehow I can just change the laws unilaterally is just not true … We are doing everything we can administratively.

 

"But the fact of the matter is, there are laws on the books that I have to enforce."

 

Since then, however, the president took executive action to prevent the deportation of 1.7 million immigrants under the age of 30 who were brought to this country as children, giving them the power to apply for temporary work permits.

 

It is expected that Obama's next step will be to expand the policy to include the parents of child immigrants, giving permission to as many as 6 million undocumented immigrants to temporarily stay in the country and be protected from the threat of deportation.

 

The move stops short of granting them legal status and is therefore well within his rights, one expert said.

 

"The notion that the president cannot use his authority to grant temporary reprieve is patently absurd," David Leopold, a Cleveland immigration lawyer, told the Post.

 

Since the mid-1970s, the Immigration and Naturalization Service has been using prosecutorial discretion for "both practical and humanitarian" reasons, and administrations have used their discretion to varying degrees since then.

In 1986, President Ronald Reagan granted amnesty to 3 million people who had come to the United States before 1982, and he subsequently decided to allow 1.5 million spouses and children stay. Their exemption from deportation was ultimately made law under former president George H.W. Bush, according to the Post.

 

But no president has ever exercised his discretion as broadly as Obama is expected to do, the Post said, prompting the question about whether the scale of the move is the distinguishing factor that makes his use of authority materially different from previous presidents.

 

Regardless, it appears the president is banking on the fact that Congress will do little to stop him, the Post said.

 

Congress has few tools at its disposal to stop the president's action from going into effect. It has the ability to pass legislation that would cancel any executive action or prevent funding to implement the new regulations.

 

The idea of launching a lawsuit has also been floated, but it is unclear what role, if any, the judiciary would play in potentially arbitrating a dispute between Congress and the executive branch.

 

A third unlikely option would be impeachment, requiring a majority vote in the House and a two-thirds vote in the Senate.

 

"I think the president wants a fight," GOP Rep. Tom Cole said on ABC's "This Week," according to the Post. "I think he's actually trying to bait us into doing some of these extreme things that have been suggested. I don't think that we will."

 

The debate about the president's authority comes as

a new poll by USA Today shows that most Americans oppose any executive action, with 46 percent saying the president should wait for the new Republican-controlled Congress to act, and 42 percent saying he should take action now. Another 10 percent are unconvinced either way.