Obama: I "probably" can't grant amnesty on my own

Is this the analysis of a constitutional law scholar? Or of a President who’s managed to get away with encroaching on legislative jurisdiction to the point of dictating the meaning of “in session”? Univision asked whether Barack Obama can bypass Congress and the courts and just declare illegal immigrants legal by executive order.  Obama replies, “Probably not”:

President Obama said in an interview with Univision airing Tuesday that he “probably” cannot legalize illegal immigrants by executive order — a decision he might be faced with if Congress fails to pass comprehensive immigration reform.

“Probably not,” Obama said, according to a transcript. “I think that it is very important for us to recognize that the way to solve this problem has to be legislative. I can do some things and have done some things that make a difference in the lives of people by determining how our enforcement should focus.” …

Obama noted his deportations have focused on criminals and that he has signed an executive order exempting young illegal immigrants from deportation.

Actually, that hasn’t been fully challenged yet, but it arguably falls into the area of prosecutorial discretion, not legalization.  The executive order tells the executive branch to focus its enforcement and deportation efforts solely on those illegal immigrants who commit more crimes within the US, and not the minors without any other criminal activity.  That edges up to a refusal to enforce statutory law — which Obama has expressly announced with the delayed employer mandate in ObamaCare — but the discretion area is sufficiently gray that a court probably wouldn’t interfere in that decision, chalking it up as a political rather than legal issue.  (The courts took a similar view in striking down the controversial parts of Arizona’s immigration-enforcement law.)

Executive orders only impact the executive branch.  Granted, that’s a wide area of regulatory turf, but EOs cannot negate statutory law.  Illegal immigrants are illegal because they violated that statutory law by either crossing a border without permission or by overstaying their visas.  In order to grant them legal status within the US, Congress has to pass a statute creating that exception.  That’s true even for those whom the Obama administration refuses to deport; they’re still illegal immigrants, albeit in a limbo status.  If Obama issued an EO stopping all deportations, that wouldn’t change the legal status of anyone in this country, and it might force courts to instruct the White House that it can’t refuse to do its job.

Obama then explains that Congress has to provide a solution, but that it better have a path to citizenship built into it:

“But this is a problem that needs to be fixed legislatively,” he said. “So I’m not going to speculate on the House bill failing. I’m going to make sure that I do everything I can to help it succeed.”

Obama said he remains “cautiously optimistic” that Congress will come to an agreement, and he said any agreement should include a path to citizenship, not mere legalization.

That’s standard negotiation, of course, and standard constitutional process.  Probably.

Update: A intriguing question from Twitter:


I don’t believe Presidents can pardon people without them first being charged, at the very least, with a federal crime.  Blanket pardons of millions of people would probably get challenged and overturned in federal court as an unconstitutional end run around Congress.  It’s difficult to answer, though, because no President has ever contemplated doing it, including Obama. Probably.