Congress leaves town: How far can Obama go it alone on border crisis?

With emergency funding in limbo, President Obama claims an opening to relieve the child migrant crisis on the border. Legal analysts say there's much that he can do.

Jacquelyn Martin/AP
President Obama gestures as he speaks in the Brady Press Briefing Room of the White House in Washington on Friday. With members of Congress out of town for five weeks, the president said he was 'going to have to make some tough choices to meet the challenge' on the border.

With Congress out of town for five weeks, President Obama says that he is forced to go it alone on the border crisis, even with a House lawsuit in the works chiding him for executive overreach.

The White House’s $3.7 billion emergency request to deal with the child migrant crisis on the US border with Mexico failed to produce a dime.

“I’m going to have to act alone, because we don’t have enough resources,” the president told reporters at an impromptu press briefing on Friday.

"That means while they're out on vacation, I'm going to have to make some tough choices to meet the challenge, with or without Congress, he added.

A Senate measure to provide $2.7 billion in emergency funding derailed Thursday on a procedural vote. The next votes in the Senate aren’t expected until the second week in September.

After quelling a conservative revolt in their own ranks, House Republicans on Friday passed two measures: One is a spending bill that commits $700 million to border security and humanitarian assistance. It also rolled back a 2008 anti-trafficking law that gave child migrants from nonbordering countries the right to have their case heard before a judge, a process that can take years. It passed on a near party-line vote, 223 to 189.

The other, directed straight at the Obama White House, rolls back a 2012 memo by the Department of Homeland Security that deferred deportation for many undocumented immigrants who had come to the US illegally as children. Deferred Action for Childhood Arrivals, or DACA, has been a flashpoint for conservatives. The bill passed 216 to 192, with 11 Republicans voting with all but four Democrats in opposition.

Even before Congress failed to deliver on a spending package for the border, a top Obama adviser signaled that the president was preparing "very significant executive action" on the larger issue of immigration reform, also to launch without the Congress.

“The president acting on immigration reform will certainly up the likelihood that [Republicans] would contemplate impeachment at some point,” senior Obama adviser Dan Pfeiffer told reporters at a Monitor breakfast last week.

Even with a returning Congress in a confrontational mood, there are steps that the White House could take this summer that could sustain a court challenge, legal experts say.

"In most enforcement realms, generally there is pretty broad discretion," said Leon Rodriguez, a former Justice Department lawyer and the newly confirmed director for US Citizenship and Immigration Services, told an oversight hearing of the House Judiciary Committee this week.

The range of such options includes giving undocumented immigrants official work permits that allow them to find legal employment, obtain driver's licenses, and pay income taxes.

Some legal analysts also claim a basis for the president to expand his executive action to shield some young undocumented immigrants from deportation – the DACA program that the House just tried to curb.

Since Aug. 15, 2012, when the first DACA applications were processed, more than 600,000 individuals have applied for a two-year deferment on deportation. The program covers people under the age of 31 who arrived in the US before they turned 16 and have continuously resided ever since. Pressed by Democrats at a hearing of the House Rules Committee on Friday, House Republicans did not say whether they intended the measure to block renewals of those already shielded by the program.

Democrats are urging the administration to expand DACA protection to more of the 11 million residents now in the US illegally. This prospect, and others, has been vetted in private discussions with administration allies, and the White House is preparing executive action, the Washington Post reports on Saturday.

Steps widely viewed as out of bounds for presidents acting alone include: granting citizenship or permanent residency, changing eligibility for federal or state social benefit programs, including welfare, food stamps, or health care.

Meanwhile, the House Judiciary Committee this week released its own list of immediate steps the president could take to start solving the border crisis, without congressional action. These include:

  • Sending a strong, public message that those who enter illegally will be returned.
  • Cracking down on fraudulent asylum claims, which may include at least 70 percent of asylum cases, according to an internal DHS report obtained by the committee.
  • Restoring agreements with local law enforcement agencies to enforce immigration laws.
  • Giving Border Patrol agents access to federal lands.

Material from The Associated Press was used in this report.

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