Obama's Immigration Action Shows the Limits of Executive Power

President Obama’s executive action on immigration, which will temporarily legalize as many as 5 million unauthorized immigrants in the United States, is being criticized by opponents as an unprecedented abuse of presidential authority. But as the details are coming out, what the action shows instead is how sharply limited the president’s powers actually are. What has been true for many years remains true today: the real problems with U.S. immigration laws simply cannot be solved without congressional action.

The most controversial move is the President's decision to grant temporary reprieve from deportation to as many as 5 million unauthorized immigrants, primarily those who are parents of U.S. citizen children, have been in the country for at least five years, have no criminal record and pose no security threat. While other presidents have used the deferral power to halt removal of smaller groups of migrants, Obama’s action is far bigger than anything carried out before. For the individuals affected, this matters enormously. It will remove the daily fear of arrest and deportation, permit them to obtain legal work permits and possibly find better jobs.

But the change from the status quo will be much smaller than critics imagine. Under current deportation priorities, the likelihood of these people being removed is already extremely small. The Obama administration has already focused on finding and deporting recent border crossers, and those with criminal records, not working immigrants with families. And the benefits of temporary legalization are far less than critics might imagine. Those who come forward will get greater certainly that they can keep their jobs, will be eligible for a driver’s license in many states, and will be free to travel back home and return with the prior permission of the U.S. government. But they will not be eligible for any government support programs like food stamps or welfare, will not be covered by Medicaid in most states, and will be ineligible to purchase health insurance through Obamacare. They will be tolerated guests rather than permanent residents.

The other elements of the executive action are far smaller and will do next to nothing to fix severe problems in the system. Each is clearly within the authority of the president to carry out, but as a result are not very ambitious.

On skilled immigration, for example, high-technology companies fighting to hire and retain foreign engineers had hoped for something significant from the administration. They didn’t get it. One possibility floated was to “recapture” unused green card slots so that employees working on temporary visas like the H-1B would have been able to move more quickly to permanent residence. This is good for the employees and good for their companies. Another idea was to expand legal immigration by counting only the primary applicant against the annual quota of 140,000 employment-based green cards, instead of counting as well spouses and children, as is currently done. The administration rejected both of these ideas.

Instead, the main action helpful to U.S. companies is a modest expansion of the “optional practical training” program, which allows foreign students to work in the United States for up to two and a half years after graduation. The George W. Bush administration did the same thing in 2008, stretching OPT from 12 to the current 29 months for students with STEM degrees, and scarcely anyone noticed. Obama himself quietly expanded the number of eligible fields of study in 2012. The other measures on legal immigration include a range of helpful but limited administrative fixes to problems in some of the work visa categories, all of which could have been done quietly at any time. The most important of these are some increased "portability" for H-1B and other temporary visa holders, allowing them more easily to switch jobs while a green card application is pending, and a new scheme to encourage foreign entrepreneurs.

On border security, both the Democratic Senate and the Republican House have drawn up ambitious plans to add new resources and focus on results, measures that might finally have resolved the debate over whether the border is as secure as it needs to be. The administration’s actions, on the other hand, amount to little more than moving the pieces around, shuffling some agents from the interior to the border, and emphasizing its commitment to apprehend and remove recent border crossers.

On interior enforcement, the president is replacing “Secure Communities,” a program that was created by the Bush administration without any explicit authorization from Congress, and then expanded under Obama.  Through Secure Communities, many state and local police forces have agreed to provide fingerprints of all criminal suspects to federal immigration authorities via the FBI, and to turn over to Immigration and Customs Enforcement (ICE) those suspected of being in the country illegally. The program has long been controversial, and some cities have refused to participate, fearing it would erode police trust in immigrant communities. The new program, along with a revised set of enforcement priorities, should make it still clearer that the focus is on removing those with criminal records or who otherwise may pose a security threat. But it does not appear to be a significant change from the status quo, and is clearly within the authority of any administration.

As the details of the president’s plan sink in, what is striking is less its ambition than its modesty. It does little to fix the problems in the legal immigration system, shuffles the deck on border and interior enforcement, and offers only a partial and perhaps temporary reprieve for some of those living illegally in the United States. Once the rhetoric cools a bit, it should become clear to both Republicans and Democrats that any real solution to the immigration mess requires going back to work in Congress.