President Obama’s recent proclamation to expand immigration benefit to a potential 5 million undocumented individuals has been heavily criticized and has come under a microscope to review its legal standing. Under the Constitution the Executive branch is given broad discretionary power to enforce immigration priorities but at the same time does not give the President the power to grant legal status to anyone in the US. To an extent the President is at the mercy of Congress to make changes to immigration laws or provide the Department of Homeland Security the necessary tools to ameliorate a broken immigration system. Needless to say, Congress’ inaction in the last couple of decades to pass meaningful laws has propagated a society of millions of undocumented individuals, unsecured borders, rampant deportations, and seemingly endless waiting for family and employment based visas.
Thus President Obama announced that he would use the powers he does have to take executive action to provide some type of relief to individuals that entered as children and have met certain education qualifications – enter the DACA program. As stated in by Dara Lind in her article on Vox “Deferred action has been around 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 was not 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, believe that expanding the program to many millions more 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, 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.”
Whether President Obama elects to sign an order providing Parole to undocumented individuals or rather extends deferred action is yet to be seen and will be highly scrutinized for legality. However until Congress actually passes meaningful legislation that has a visible effect to fix a broken immigration then the the hope of the undocumented community lies of president’s initiative to usurp executive powers.