What We Know -- And Don't Know -- About Obama's Imminent Immigration Action

PHOTO: U.S. President Barack Obama speaks during his news conference at the G20 Summit in Brisbane, Australia, Nov. 16, 2014.Pablo Martinez Monsivais/AP Photo
U.S. President Barack Obama speaks during his news conference at the G20 Summit in Brisbane, Australia, Nov. 16, 2014.

President Obama could unveil as soon as Friday his planned, unilateral overhaul of the nation’s immigration system. Details of the proposed measures remain under wraps, but senior administration officials have said Obama is prepared to “go big.”

Homeland Security Secretary Jeh Johnson said over the weekend that the administration is in the “final stages” of developing the plan, which he described as comprehensive, touching all aspects of American immigration including border security.

PHOTO: The USA Mexico border as seen from Nogales, Ariz., Sept. 27. 2013.David Kadlubowski/Corbis
The USA Mexico border as seen from Nogales, Ariz., Sept. 27. 2013.

What immigration executive actions are on the table?

PHOTO: Members Congress clinb the steps of the House of Representatives for final votes, at the Capitol in Washington, Thursday, July 31, 2014.(J. Scott Applewhite/AP)
Members Congress clinb the steps of the House of Representatives for final votes, at the Capitol in Washington, Thursday, July 31, 2014.

The most controversial aspect of Obama’s planned action will be an order to, on a temporary basis, exempt from deportation and grant work permits to as many as 5 million undocumented immigrants.

Obama has said he is prepared to expand a 2012 program – Deferred Action for Childhood Arrivals – that has so far shielded more than half a million young immigrants from deportation. Under terms of the program, implemented by executive action, only migrants who came to the U.S. before age 16, are under age 31, have lived here five years, completed schooling and have no criminal record are eligible for relief in two-year, renewable increments.

The president is said to be considering modifications to the existing criteria, which could expand the number of immigrant youth eligible to apply. Immigration advocates say Obama may also create a new deferred action program that could benefit millions of undocumented immigrant adults who are parents of American citizens or legal residents.

Aside from deferred action, the White House is weighing whether to further refine guidance for which immigrants should be prosecuted and deported if they are apprehended by authorities. Obama has previously directed the Department of Homeland Security to prioritize removal of immigrants with criminal records to help ease a backlog of cases. Tightening or loosening the definition of what crimes would merit prioritization (e.g. violent verses nonviolent) could provide additional relief to tens of thousands, according to immigration policy groups.

What about the border?

Administration officials say the president will announce steps to strengthen enforcement and security along the southwest border, where thousands of immigrant children flooded into the U.S. over the summer. While funding from Congress would be necessary for a significant surge of new resources there, Obama could direct a reallocation of existing enforcement manpower and tools from different border regions and interior enforcement areas.

“We’ve got severe resource constraints right now at the border not in apprehending people, but in processing and having enough immigration judges and so forth,” Obama said Sunday. “And so what’s within our authority to do is reallocating resources and re-prioritizing since we can’t do everything.”

Would Obama’s actions be permanent and include pathway to citizenship?

None of the proposed Obama executive actions would create a pathway to citizenship for undocumented immigrants.

The White House says all executive actions can be overturned, both through action by Congress or by the next president, making any expansion of relief for undocumented immigrants through deferred action programs temporary and tenuous.

“That’s why…it continues to be my great preference to see Congress pass comprehensive legislation, because that is not reversed by a future president, it would have to be reversed by a future Congress,” Obama said Sunday.

Have presidents taken executive action on immigration before?
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Democrats point out that two Republican presidents, Ronald Reagan in 1987 and George H.W. Bush in 1989, both took executive actions that granted temporary legal status to thousands of undocumented immigrants who were not covered in the sweeping 1986 immigration overhaul passed by Congress and signed into law.

Republicans argue those circumstances were targeted and narrow, and that current proposals to extend relief to as many as 5 million immigrants would be sweeping and unprecedented, without any accompanying action by Congress or demonstrated, forthcoming bipartisan initiative.

Would Obama’s action be legal?

The legality of Obama’s proposed actions remains open to debate, though generally experts say the president has considerable leeway in enforcement discretion.

“Legally, the president has wide authority to act administratively on immigration,” said Cornell University law professor and immigration expert Stephen Yale-Loehr. “The federal courts have often noted that the president has broad executive authority to shape the enforcement and implementation of immigration laws, including exercising prosecutorial discretion to defer deportations and streamline certain adjudications.”

Some Republicans have called the expected Obama immigration plan “unconstitutional,” and have considered taking the administration to court.

When will Obama announce his action?

The president could unveil his executive action as soon as Friday, when Congress will begin a one-week recess for the Thanksgiving holiday, but no later than the end of the year, as Obama has repeatedly promised, administration officials say.

Senate Majority Leader Harry Reid has asked the White House to wait until after Congress passes a measure to keep the government running past Dec. 11 in order to avoid complicating the budget process. But some administration officials have dismissed those concerns, seeing no advantage to waiting – even possible political gain, if Republicans were to raise threat of a government shutdown.

“Any executive action that I take is going to require some adjustments to how DHS, the Department of Homeland Security, operates where it’s deploying resources, et cetera; how are folks processed; what priorities are set up,” Obama said Sunday. “And so I want to make sure that we’ve crossed all our T’s and dotted all our I’s -- that that’s my main priority.”

How does the American public feel about executive action on immigration?

The latest ABC News/Washington Post poll on the issue of immigration found widespread public frustration with the status quo, but skepticism about extending legal status and work permits to millions of undocumented.

A majority – 52 percent – of Americans said they would like to see Obama act unilaterally on immigration in the absence of Congressional action, with 44 percent opposed, in the September survey.

But when asked about plans to extend legal status and work permits to undocumented immigrants now living and working in the U.S., a majority were opposed – 50 percent saying they do not back the idea, up four percentage points from the year before.