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Is it legal for Obama to give relief to millions of immigrants?
The president doesn't have the authority to give anyone legal status in the US. But the current system gives the executive branch broad authority to decide what it wants to prioritize when it comes to immigration enforcement.
That's why deportations have increased so much over the last twenty years, despite no substantial changes to the law. But it also means Congress has given the Department of Homeland Security a few tools to keep unauthorized immigrants from getting deported.
One of those is "deferred action," which is the basis for the DACA program for young unauthorized immigrants. Deferred action has been around for decades to protect immigrants from deportation in particularly compelling cases. It's usually granted on a case-by-case basis, but it's been granted to groups of people before — albeit on a much smaller scale than DACA.
Some critics of DACA argue that it wasn't legal. They say that by announcing a set of criteria and inviting all immigrants who met the criteria to apply, the Obama administration went beyond granting relief on a case-by-case basis — and therefore overstepped its authority.
Scholars who believe DACA was legal, though, believe that expanding the program to millions more immigrants would be legal as well. In other words, there doesn't appear to be a legal basis for thinking that what Obama's done so far is legal but doing anything more would be illegal.
The legal standing for parole in place, the other tool President Obama has at his disposal to grant relief, is even more firm than the legal standing for deferred action. So there's a possibility that the Administration will institute parole for many unauthorized immigrants, rather than expanding the DACA program.
Most critics of executive action think that any attempt to grant relief from deportation to immigrants, or roll back immigration enforcement, means the president is "refusing to enforce immigration law." But because of the broad discretion the executive branch gets in immigration policy, the critics are really making an argument about what US immigration policy should be — not about what the law requires.
