Can Obama Implement Immigration Reform Without Congress

Categories: Immigration Lawyer Blog San Diego

Employers, Immigrants, Immigration Attorneys, and many others all realize the dire need for immigration reform. However, we are constantly let down by the squabbles of congress, and it seems the hope is minimal of actually getting something passed.

What about the president, doesn’t he have some power. Yes, in fact the president may issue an executive order. While the Constitution does not explicitly permit Executive Orders, there is a vague grant of “executive power” in Article II, Section 2, Clause 1 of the Constitution, and furthered by the statement to  “take Care that the Laws be faithfully executed”  in Article II, Section 3, Clause 4 that has been construed to justify an Executive Order’s legal weight.  Presidents have used this Constitutional reasoning as a basis for power to issue Executive orders to carry out the President’s duties.

An interesting blog post at Nation of Immigrators details exactly what such an order might look like. The author states that the president could declare an “immigration emergency” as over 10 million people are living illegally in the United States many of whom have American children, the Federal Government lacks the economic resources to remove these individuals, Congress and prior administrations have failed to enact comprehensive immigration reform, the recent state legislation raises serious civil rights issues and Constitutional concerns, as well as other reasons.

The author suggests that such and Executive order would command the Secretary of Homeland Security and the Attorney General to:

1. Establish a system of registration for illegally present foreign citizens, allowing them to pay a fine of $2,500 or less, all back taxes, and a fee to cover the cost of the registration system.  In exchange they would receive employment authorization.

2. Allow everyone to adjust status under Section 245 for everyone that has a priority date based on an approved labor certification.

Such a measure would surely create a backlash from Congress and Republicans, but so does almost everything else.