MIAMI — President Obama's recent order to his administration to find ways to deport people living in the United States illegally "more humanely" has both sides of the immigration debate wondering eagerly what he means by that.
President Obama's announcement that he wants to find a way to deport people "more humanely" has reignited a heated debate that could determine the fate of millions of undocumented immigrants living in the country.
Advocates for undocumented immigrants hope it means that the Department of Homeland Security will finally decide to end all deportations, and opponents of Obama's immigration polices hope it does not.
Both sides say the law is on their side: proponents claim Obama has every right to order a backing away from enforcing deportation laws and opponents say he is violating his oath of office if he does.
"The Department of Homeland Security has a pretty broad range of authority to decide which individuals will be removed from the country or not," says Marielena Hincapié, executive director of the National Immigration Law Center, which provides legal services to undocumented immigrants.
"The administration is on solid legal footing ... and can still go much further."
Ira Mehlman of the Federation for American Immigration Reform, which seeks lower levels of legal and illegal immigration, says doing so violates Obama's oath to "preserve, protect and defend" the Constitution.
"If he can simply decide, 'Congress can pass any law that it wants and I'm going to ignore the ones I don't like and create the ones I want,' then this is not just an immigration issue," Mehlman says. "This ends up becoming a constitutional issue and it's precisely what the founding fathers sought to avert."
Advocates for undocumented immigrants who have been pressing urging the White House to halt all deportations hope that the Obama administration's review of the deportation system, announced last week, will give families torn apart by immigration agents the relief they need. On the other side, critics of the president say he's already gone beyond his legal limits by exempting large groups of undocumented immigrants from deportation, and protecting more people would represent his latest attempt to trample the Constitution.
It's now up to the president's Department of Homeland Security to find the middle ground between those two extreme positions.
When the president decides, it will likely reignite a debate in Congress and making its way through federal courts about the limits of presidential power that goes back decades.
To get there, it helps to start with two simple facts.
At first glance, the debate seems pretty clear.
In 1954, the U.S. Supreme Court ruled in Galvan v. Press that the power to create immigration policy is "entrusted exclusively to the Congress." However, in 2002, when Congress created the Department of Homeland Security, it delegated to the department's secretary the power to establish "national immigration policies and priorities."
Obama has already alluded to that Congressional mandate when establishing orders and policies for immigration enforcement.
in past orders and policies he has made regarding the enforcement of immigration laws decisions he has made to focus immigration enforcement on certain segments of the undocumented population.
In 2011, John Morton, then Obama's director of Immigration and Customs Enforcement, issued a memo laying out a set of principles his agents should follow when determining who to deport.
In what is known as "The Morton Memo," agents were told to focus deportation efforts on certain undocumented immigrants, such as those with extensive criminal records or those deemed threats to national security.
In 2012, the president went a step further, creating the Deferred Actions for Childhood Arrivals program. That allowed undocumented immigrants brought to the country as children to apply to the federal government to have their deportations delayed for two years. So far, more than 520,000 people have been approved.
Immigrant advocates such as Hincapié say Obama has unquestionably carried out the immigration enforcement goals approved by Congress, as evidenced by the roughly 400,000 people he deports each year. His moves to protect some segments of the undocumented population is merely his way of targeting the right people to deport, they say.
"The Department of Homeland Security has a pretty broad range of authority to decide which individuals will be removed from the country or not," said Marielena Hincapié, executive director of the National Immigration Law Center, which works to provide fair legal treatment for immigrants. "The administration is on solid legal footing...and can still go much further."
Many critics of the administration say any president has the right to exercise "prosecutorial discretion," or directing federal law enforcement officers and government attorneys to focus efforts on certain types of crimes and pursue criminals to pursue and which to ignore.
But Mehlman and others say a president exceeds his legal authority when he exempts gone beyond that right with every broad classes of people here illegally from federal deportation lawsunder immigrant that he has chosen to spare.
"If he can simply decide, 'Congress can pass any law that it wants and I'm going to ignore the ones I don't like and create the ones I want,' then this is not just an immigration issue," said Ira Mehlman of the Federation for American Immigration Reform, a group that advocates for lower levels of legal and illegal immigration. "This ends up becoming a constitutional issue and it's precisely what the founding fathers sought to avert."
That legal argumentsentiment led a group of agents for the U.S. Immigration and Custom Enforcement agency, the interior enforcement arm of DHS, to sue the Obama administration. They claim the White House put them in an impossible bind because as agents they are required by law to deport people they encounter who were in the country illegally, but their superiors are telling them not to based on the principles laid out by Homeland Security leadership.
Whether that is a sound legal position has to to be decided. U.S. District Judge Reed O'Connor dismissed the lawsuit last year but only because it had been filed in the wrong jurisdiction. In his ruling he stated that he agreed that the agents had a strong case.
"The Court concluded that plaintiffs were likely to succeed on the merits of their claim that the Department of Homeland Security has implemented a program contrary to congressional mandate," O'Connor wrote in July.
The case is under appeal.
Kansas Secretary of State Kris Kobach, who has helped states like Arizona and Alabama pass bills cracking down on illegal immigration, is representing the ICE agents and said they are appealing the judge's decision.
The complexity of the debate over the president's powers can be seen in the reaction from House Republicans.
Some politicians who oppose Obama's exemptions of whole classes of undocumented immigrants from the law have agreed that past presidents have the right to exercise "prosecutorial discretion" in immigration cases.
In 1999, 14 Republicans signed a letter calling on the attorney general and commissioner of the Immigration and Naturalization Service to use "prosecutorial discretion" and not act on cases that had come to their attention of legal permanent residents who were deported for committing a single low level crime years ago.
The letter-signers said prosecutorial discretion was a "well established" principle that should be used to stop the deportations they described as "unfair and resulted in unjustifiable hardship."
Signatories to the letter include ome of the signers of that letter are now some of the loudest voices trying to halt Obama's use of discretion. Two of them - Rep. Lamar Smith, R-Texas, and Rep. James Sensenbrenner, R-Wis., co-sponsors of the ENFORCE Act passed by the House that would let Congress sue the executive branch for failing to enforce laws.
Much of the debate supporting the ENFORCE Act focused on the president's program to defer deportations of undocumented immigrants brought to the country as children.
Smith disagreed that the letter indicates he agreed with Obama's position in the past.said the 1999 letter was focused on legal immigrants who were being unfairly deported.
"This stands in stark contrast to the president's actions that go beyond the bounds of our immigration laws by exempting broad categories of illegal immigrants from enforcement by executive fiat," he said.
Obama himself has pointed out that there's a limit to what he can do.
"I'm not a king," he told Univision last year.
But as Homeland Security officials dig into the legal ramifications of changes to the deportation system, they also feel they have room to do more.
The Department of Homeland Security is conducting a system-wide review of the way it enforces immigration laws per Obama's directive last week. But it is something that has been on the president's mind for a while.
"I am the head of the executive branch of government. I'm required to follow the law. And that's what we've done," Obama told Univision last year. "But what I've also said is, let's make sure that we're applying the law in a way that takes into account people's humanity."