How Obama Could (but Probably Won't) Stop Deporting Illegal Immigrants Today

The government spends $5 billion a year detaining and deporting immigrants who may soon be eligible for amnesty over minor infractions. Why not just pardon them instead?

An officer at an illegal-immigrant detention center in Nogales, Arizona, leads a line of people to buses for deportation in this 2006 photo. (Jeff Topping/Reuters)

In February, the Department of Homeland Security began quietly releasing immigrants from federal detention centers across the country. There was no clear pattern to the releases: Several hundred people were allowed to walk free from facilities Texas and Arizona, while no more than 50 were freed from the sprawling prison south of Seattle that houses nearly 1,300 undocumented people from around the globe.

For immigration advocates, it was a conspicuous but not wholly unusual departure from business as usual by the feds.

"It's hard to pinpoint what the reasons were for the releases," says Jorge Barón, director of the Northwest Immigrant Rights Project, an organization that provides legal aid to undocumented people. "This is not a causative thing. It's fluid. People get released all the time."

The releases were not announced publicly, and DHS officials initially refused to confirm the move, which involved mostly low-risk individuals accused of overstaying their visas, traffic offenses, and other minor transgressions. Later, the agency insisted only a few hundred people were temporarily released on bond. When it finally emerged that 2,228 immigrants were set free, in part because of $3.2 billion in sequester-mandated budget cuts, the backlash was histrionic, even by Capitol Hill standards.

House Judiciary Committee Chairman Bob Goodlatte called the releases "abhorrent" and accused President Obama of "releasing criminals into our communities to promote his political agenda on sequestration." ("Several hundred are related to sequester," Homeland Security Secretary Janet Napolitano later said, "but it wasn't thousands.") Republican Senator Jeff Sessions of Alabama said the White House "further demonstrated that it has no commitment to enforcing the law and cannot be trusted to deliver on any future promises of enforcement."

DHS quickly halted plans to release an additional 3,000 low-risk detainees in March, much to the dismay of immigrant advocates and proponents of reduced government spending. The government holds roughly 30,000 undocumented people in custody on any given day, mostly in privately run prisons. It costs about $164 per inmate per day, according to one widely cited figure, versus as little as 30 cents per day to release the same individual to community supervision, where they are required to attend court hearings and, in most instances, face deportation.

"The scaling back of the detention system is something that's doable," Barón says. "It's unfortunate that it's come in the context of the sequester, but we do hope even if it came about for the wrong reasons it can lead to a discussion of whether we should be spending all that money and inflicting a lot of human damage."

Detention and deportation of undocumented immigrants costs about $5 billion per year, or roughly $12,500 for every person shipped home. Many of those currently being expelled from the country will likely qualify for permanent residency or other legal status under the leading immigration reform proposals. So why doesn't Obama simply halt deportations of all non-criminal undocumented immigrants until the proposed changes take effect?

Despite the indignant protests of conservatives, prosecutorial discretion -- the tool used in the February detainee releases -- is a relatively uncontested power of the executive branch. Randy Beck, Justice Thomas O. Marshall chair of constitutional law at the University of Georgia, says the president's job is to enforce the law but there is room for leniency.

"There usually is enough play in the joints of statutes to give the executive branch a subtle way of adopting regulations and enforcement priorities," Beck says. "If you sat people down and explained, 'Look, we don't have the resources to deport everybody. We have to pick and choose and we're just going to choose people who have committed serious offenses,' most people would get on board with that. Of course, that's not the way it gets reported or spun or whatever."

In 2012, when Obama signed his executive order enacting the Deferred Action for Childhood Arrivals (DACA) program, the outrage was vociferous. Commonly linked to the DREAM Act, the stalled legislation it seeks to temporarily take the place of, DACA grants work authorization and a temporary reprieve from deportation to certain undocumented young people. Senator Chuck Grassley of Iowa called the decree "an affront to the process of representative government."

The tone of the immigration debate has softened considerably over the past year and even weeks, but even the bipartisan Senate push for an immigration fix seeks vaguely defined border-security benchmarks that must be met before changes take effect. Last week, Senator Rand Paul proposed an annual vote by Congress to "certify" the border as secure before reforms proceed. Immigration-rights advocates are concerned that deportations and detentions could be used as the standard by which security is judged.

"The administration has put itself in a little bit of a bind," Barón says. "They've been trying to say, 'We're really tough on enforcement and we're deporting a lot of people.' Now anytime they seem to be backing off that they're going to be called out. The way they should be talking about it is, 'We realize we don't need to have these people detained. It's not humane, we're working on comprehensive immigration reform. We're not dropping those cases.'"

Whether Obama could legally expand the DACA program to include a much broader swath of the country's esimated 11 million undocumented immigrants depends on whom you ask. John Yoo, the George W. Bush Administration deputy assistant attorney general whose legal memoranda justified "enhanced interrogation" techniques, blasted DACA in a law review article in September, describing it as a "breach of duty" under the Constitution.

On the other hand, Kenneth R. Mayer, a professor of political science at the University of Wisconsin and author of the book With the Stroke of a Pen: Executive Orders and Presidential Power, argues history is littered with executive orders popular with the president's party and condemned by the opposition.

"Democrats and liberals say, 'This is wonderful, it's about time,' while conservatives and Republicans are outraged, saying 'He's nullifying a law, he can't do that!'" Mayer says. "The answer is they're both right. In practice, the president can do this. But Congress could try to stop him, and the way they do that is raising the political cost to a degree the president doesn't find acceptable."

With immigration-reform legislation inching toward the president's desk, it's unlikely he'll waste political capital by halting deportations or even reducing the immigrant detainee population, despite the budgetary considerations. The prospect of doing anything that might alienate Republicans, especially with a compromise so close, alarms activists like Tamar Jacoby, president of ImmigrationWorks USA, an advocacy group comprised largely of small-business owners.

"We have a Congress for a reason," Jacoby says. "To fix anything permanently you need to have legislation, and in order for that to happen it has to be bipartisan. My worst nightmare is the president thinking, 'I don't need bipartisan legislation. Why share credit with Republicans? I can just go on and do this myself.' I think that's a disastrous political strategy."

If the current congressional push for immigration reform were to fail, however, a presidential pardon for undocumented immigrants with no criminal history might be Obama's last ditch alternative to prosecutorial discretion. Rather than scaling back on detentions, Obama could instantly--and permanently-- legalize millions of illegal immigrants. Beck, the Georgia law scholar, notes that the Constitution empowers the president to "grant reprieves and pardons for offences against the United States, except in cases of impeachment."

The question, he says, is "whether coming into the country in violation of the immigration laws or overstaying a visa could be deemed an 'offense against the United States.'" But the president has broad powers of pardon, and it seems that Obama could exercise those powers here. Beck cites United States v. Klein, an 1871 Supreme Court case that involved a presidential pardon issued during the Civil War to confederates who rejoined the union and took an oath of loyalty.

But even if executive-branch lawyers could put forth a legal rationale for the move, there are political reasons why Obama would likely be reluctant to make it. Although potentially cementing loyalty from a generation of Latinos, a mass pardon would likely be deeply unpopular with moderates and liberals who put faith in the legislative process, and would be considered downright treasonous by many Republicans. Obama could face Congressional censure or perhaps even impeachment if he had any time remaining in office, and the backlash against Democrats could make the Tea Party-fueled, Obamacare-inspired shellacking of 2010 look mild.

"If in December 2016 Obama says, 'Unconditional pardon to everybody in the country illegally,' that would totally dismantle Democratic Party governance for a generation," Mayer says. "I don't think he wants that to be his legacy."