http://nilc.org/powertofix.html — An article from the NILC:

President Obama has the legal authority under the Constitution and laws passed by Congress to determine how to prioritize immigration enforcement in the United States.

President Obama has the legal authority under the Constitution and laws passed by Congress to determine how to prioritize immigration enforcement in the United States. Presidents Reagan, George H.W. Bush, Clinton, and George W. Bush have used this authority in the past.

For instance, the president may allow immigrants who have lived in the U.S. for a long time or who have deep ties here to register with the Department of Homeland Security. He can then give them temporary authorization to stay and work. This will allow the Department of Homeland Security to reprioritize resources that would otherwise be used to target, prosecute, and deport these low-risk individuals, allowing authorities to address more pressing concerns, including stopping guns and drugs from crossing the border.

Attacks on this presidential power are partisan, not based in the law

News organizations have reported that the president may implement changes to our immigration system to allow certain immigrants to apply for relief from deportation. In response to these reports, some conservative politicians have made misleading statements, saying that if the president acts, he is being “imperial” and breaking the law.

These remarks are an attempt by Republicans to stir up anti-immigrant voters before the November elections. In fact, if — or when — President Obama makes desperately needed changes to our immigration system, he will be following the same legal path taken by both Republican and Democratic presidents.

What is “prosecutorial discretion”?

President Obama, like any president, must make decisions about how best to use limited resources to enforce immigration law. Making decisions about which immigration cases to prioritize, and when they should be dealt with, is known as “prosecutorial discretion.”

Most Americans see examples of law enforcement discretion every day. If a police officer lets you off with a warning instead of writing you a ticket for speeding, the police officer is exercising discretion over whom to ticket. A local prosecutor may use her discretion to not prosecute jaywalking cases so that the local court can focus limited time and resources on more serious cases.

Unfortunately, our current immigration system does not use discretion effectively. Our system unnecessarily uses limited taxpayer dollars to deport immigrants who are contributing to their families, their communities, and our economy.

What can the president do?

Under our laws, the president has clear authority to use discretion to restore some fairness and accountability to our immigration system. Here are a few of the options he has:

• Deferred action. Congress granted the Department of Homeland Security authority to carry out immigration laws, including the power to decide to delay removing an immigrant who meets certain criteria. Deferred action has a long history in the U.S.  For instance, John Lennon, the former Beatle, was spared from deportation in 1975 after he was granted deferred action.
• Parole in place. Congress has authorized the attorney general to make humanitarian decisions allowing certain undocumented immigrants to remain in the country temporarily. Currently, family members of active duty military personnel may apply for parole in place.
• Deferred enforced departure. The president, because of his authority to conduct foreign relations, can grant deferred enforced departure to immigrants from countries that, for example, have experienced a natural disaster or domestic conflict. This protects people from being deported into dangerous situations.

To read more about what the president can do to stop deportations, check out these NILC resources.

Have other presidents taken executive action on immigration?

Yes. Presidents from both major parties have taken executive action on issues affecting immigrants. Here are a few examples:

• President Reagan used executive action in 1987 to allow 200,000 Nicaraguans facing deportationto apply for relief from expulsion and work authorization.
• In 1992, George H.W. Bush granted deferred enforced departure to certain Salvadorans who faced deportation.
• In 1997, the Clinton administration used an executive order to protect many Haitians who had arrived in 1995 and earlier from deportation.

Why must Obama act now?

There are numerous reasons why President Obama should act now. Here are three:

1. Our immigration system tears families apart. Many immigrants live in families in which some family members are citizens and others are undocumented. Deporting a parent hurts children. Deporting a husband or wife often leaves families without enough income to survive. This is a human tragedy that should be resolved as soon as possible.
2. The current system wastes billions of taxpayer dollars chasing hardworking immigrant families that have strong ties to their local communities.
3. Creating a process for immigrants to register and work legally will increase tax revenues and ensure that all employers follow labor laws so that all workers are able to work safely and with dignity. American workers benefit when all employers play by the rules.