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The President’s State of the Union address this week re-iterated some of his key themes on immigration—support for comprehensive reform, dismay that DREAM Act students and foreign students educated in this country have no way to legalize their status, and a belief that he’s done enough to the secure the border. More importantly, he framed these themes in context to America’s economic recovery, innovation and growth. However, while any mention of immigration in the State of the Union is welcome, it’s what the President didn’t say that may have more of an impact on how his administration is remembered this year on immigration—and how his vision is measured by voters in the coming election.

In the State of the Union address, President Obama repeatedly signaled to Congress that he would sign sensible bills to reform our immigration system, big or small. But he quickly noted that partisan politics would make it all but impossible to pass comprehensive reform:

The opponents of action are out of excuses. We should be working on comprehensive immigration reform right now. But if election-year politics keeps Congress from acting on a comprehensive plan, let’s at least agree to stop expelling responsible young people who want to staff our labs, start new businesses, and defend this country. Send me a law that gives them the chance to earn their citizenship. I will sign it right away.

There are plenty of bills that fit this description, from the DREAM Act to proposals offering green cards to foreign graduates in science and engineering to support for immigrant entrepreneurs, but they are just as likely to flounder in the sea of partisan politics as something grander and more comprehensive.

And while the president suggested that the ball was in Congress’s court, he didn’t mention that his Administration has moved forward on reforms that don’t require Congressional action. The Administration has become more aggressive in the last in year in fixing parts of our backward immigration system, such as overhauling immigration detention, a review of the Secure Communities program, a re-invigoration of the use of prosecutorial discretion, and attempts to promote streamlined adjudications and family unity. The latter, announced just weeks ago, has generated real excitement among immigrant communities.

Similarly, changes to the way government officials decide what cases should be prosecuted in immigration court—and what cases should be dropped—have given hope to millions of immigrants that they may be able to stay with their families, at least for a while longer. But there remains considerable uncertainty about how DHS will routinely exercise discretion, especially amidst reports that DREAM Act students and others who clearly fit the government’s low priority status are still being deported.

In the areas of detention reform and Secure Communities, however, the early enthusiasm about change has been replaced by wariness on the part of advocates who want to believe promised reforms will be made. They have been repeatedly disappointed by delays in the detention realm and a continued commitment to keep Secure Communities alive, a program that many believe undermines community safety and policing.  A special task force voted out a series of necessary reforms and gave their report to Secretary Napolitano last September, but DHS has yet to announce how it will implement these recommendations.

Although these ongoing administrative reforms don’t fit tidily into the overarching vision of immigration policy the President laid out in the State of the Union, following through on them would have a lasting effect on both immigration enforcement and the consideration of benefits for those stuck in our broken immigration system. And the President shouldn’t abandon his larger vision. He has made significant strides in helping to reshape how people who don’t much care about immigration think about it and that will be critical when the time comes for comprehensive reform. But for those most directly affected by our immigration crisis, it is the most immediate details that matter most.

Photo by WhiteHouse.gov.

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DHS’s recent announcement on enforcement priorities suggests that the agency, along with the Department of Justice, is serious about trying to target those persons who pose a threat to public safety. Unfortunately, there has been little official communication from either agency about the initiatives underway to review current immigration court cases or to issue broader guidance within DHS on prosecutorial discretion, both follow ups to guidelines issued in a June memo from ICE Director John Morton. To fill the void, immigration advocacy groups have attempted to explain what these initiatives are not:  NOT an amnesty, NOT a blanket deferral of removal program for all DREAMERs or anyone else, and NOT an abandonment of the deportation laws. But because there has been little official guidance, Administration opponents and immigration restrictionists are doing their best to reshape the policy into all of these things and more.

In a recent Washington Post editorial, “Obama’s Illegal Move on Immigration,”  two former government officials argue that while the Executive Branch has broad authority to exercise discretion and set priorities, President Obama has overstepped his authority by prioritizing enforcement resources on undocumented immigrants who have criminal records:

This goes far beyond merely prioritizing the use of limited immigration enforcement resources. And it exceeds the president’s constitutional authority by, in effect, suspending operation of the immigration laws with respect to a very large and identifiable class of offenders.

These claims might be worrisome if they were even remotely accurate. At best, the administration has offered a temporary reprieve to persons who are in the lowest priority categories. No laws are being suspended. No case currently on the books is being erased. If the administration follows through on its announcement, the impact will be that some individuals who pose no threat to society will not face imminent deportation.

Furthermore, the administration has explicitly rejected any kind of categorical approach to ending removals. Thus, while we can hope that DHS and DOJ will act judiciously and reduce backlogs by temporarily moving some people out of the deportation process, it is hardly the case that the Obama administration is acting in defiance of the Constitution.

In the same Washington Post editorial, the authors conjure up images of an imperial presidency through references to King James II’s attempt to suspend the laws of England—imagery which seems like overkill when talking about immigration policy. They seem to recognize that they may be overreaching, concluding by hedging their bets:

Obama has not declared his intent to dispense with immigration law, and the point at which permissible executive enforcement discretion becomes suspension of statutory requirements often is one of degree. In this case, however, there is little question that the line has been crossed. The president is entitled to establish enforcement priorities, but the ultimate goal must always be implementation of the law as enacted by Congress. If the president disagrees with that law, he must persuade Congress to change it.

The relevant argument here appears to be that “the ultimate goal must always be implementation of the law as enacted by Congress.” With close to 400,000 deportations annually under President Obama, a stubborn commitment to enforcement programs like Secure Communities, and repeated efforts to push Congress to work with him on immigration reform, it is extremely difficult to understand exactly what the authors are incensed about.

The Obama administration has repeatedly made it clear that it intends to enforce the laws Congress enacted. This issue is squarely about prosecutorial discretion and executive authority, concepts even the authors of the editorial heartily endorse. Given the lack of analysis of the actual announcement or the guidelines, this editorial reads more like a boilerplate complaint about Obama’s politics than an actual analysis of the policy underlying the new immigration guidelines.

Photo by whitehouse.gov.

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The attacks on the Obama Administration from some immigration restrictionists are likely to escalate when Congress returns from its August recess, given the recent announcement that DHS intends to put muscle behind its prosecutorial discretion guidelines. The plan to review 300,000 immigration cases to assess whether they fall within the Administration’s enforcement priorities has already inflamed critics, some of whom are claiming that the President has “torn up the Constitution” and is now “Dictator” Obama. Unfortunately, the use of extreme rhetoric is nothing new. In a paper released today, “Using all the Tools in the Toolbox: How Past Administrations Have Used Executive Branch Authority in Immigration,” the Immigration Policy Center looks at other controversial examples of executive branch authority, particularly the debate over the implementation of the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA).

Back in 1997, the immigration community was up in arms over the unequal treatment of different nationalities in NACARA—a bill crafted by Congressman Lamar Smith that allowed certain Nicaraguans and Cubans to obtain green cards with minimal eligibility requirements, but required Salvadorans, Guatemalans, and other nationalities to go through a much more rigorous and merit based process to obtain green cards. Members of Congress from both parties and numerous advocacy groups pushed the Clinton administration to adopt rules that would soften these restrictions, while Congressman Smith accused the administration of amnesty through regulation for even considering such interpretations.

In the long run, neither side was particularly happy with the administration, which found a middle ground that allowed them to interpret the new law generously without overstepping the bounds of legal authority. It was a perfect example of responsibly using executive branch authority. Perhaps most telling, despite the enormous political pressure, the Administration was able to create a system that worked, streamlined the process for almost 200,000 applicants, and most important—the roof did not cave in. Using its authority responsibly did not undermine the Constitution, cause the collapse of government, or bring down the immigration system.

That’s worth remembering as DHS implements the prosecutorial discretion guidelines more fully. It’s also worth remembering that the Bush administration was also well aware that weathering criticism was the price you pay for implementing your vision of immigration policies. For instance, following the failure of comprehensive immigration reform in 2007, the Bush Administration publicly commented on its executive authority to enforce immigration laws. DHS Secretary Michael Chertoff and Department of Commerce Secretary Carlos Gutierrez announced a 26-point plan to use administrative measures to “sharpen the tools” available to them. While some of these administrative measures—making E-Verify mandatory for federal contractors and using Social Security No-Match Letters—were unpopular, the debate was never over the authority of the Bush administration to act—it was over whether the 26 points were the right policy choices.

The Obama Administration has taken a first step in laying out clear guidance on prosecutorial discretion and forming a review committee, but it can’t stop there. Clear and transparent guidance on the implementation of the priority review process, and how that guidance will be implemented in making decisions about new cases, is needed and must be put out quickly.

Much like the case of NACARA, there will be disagreement as well as political threats whenever the Obama administration uses its executive branch authority, but that shouldn’t stop it. In the long run, it won’t be the HALT Act that causes the loss of executive branch authority in immigration. The only way to really lose executive branch authority is through inaction based on fear of the consequences. The answer is to use all the tools in your toolbox to make the best of the laws at your disposal.

Photo by nasa hq photo.