President Obama is tantalizingly close to passing comprehensive immigration reform, a legacy achievement. The Senate has provided a bipartisan bill, and the House is working on reform. The key issues are border security and a legal pathway to citizenship for the estimated 11 million who are here illegally.
The political reasons for the House to negotiate a deal are many. A recent Gallup poll showed that 87% of Americans support comprehensive reform that includes a pathway to citizenship. Moreover, growing numbers of Latino voters in key states turned out in historic numbers for Obama in last year's election, which strongly suggests that, in the long run, Republicans need to address this constituency or continue to lose votes.
However, Speaker John A. Boehner, the Republican's point man in the House, doesn't have the luxury of operating in the long term. The conservative bloc of House Republicans is digging in against reform that includes a pathway to citizenship, and with what promises to be a bloody spending fight with Democrats looming, the speaker needs to strengthen his position with his conference.
It's no wonder the speaker has instructed his committee chairmen to send up smaller, incremental bills for consideration, with a final decision on the path forward to come this fall.
Regardless of what Boehner and the committee chairmen come up with, most of the millions of unauthorized immigrants here now will almost surely stay because it is expensive and time-consuming to deport them. The immigration enforcement system is currently funded to deport roughly 400,000 immigrants a year, funding that's unlikely to increase in difficult budgetary times, and it can take years to get many cases in front of immigration judges.
In part for those reasons, the Department of Homeland Security does not treat all deportations equally. In recent years, the agency has expanded its use of prosecutorial discretion in immigration enforcement, focusing on recent border crossings and public safety threats. Today, deportations of immigrants with strong connections to the U.S. are unlikely.
Indeed, prosecutorial discretion is a guiding principle of this administration's immigration enforcement policy. With it, the administration has moved immigration enforcement from an ad hoc system in which individuals are removed indiscriminately to one that prioritizes criminals, recent border crossers and fugitives. In 2012, 96% of all removals were based on these priorities. Opponents of the policy call it amnesty, but with limited resources, it's obvious why an agency charged with protecting the homeland is focusing its deportation efforts on national security and public safety.
For Obama, expanding prosecutorial discretion in deportations has been good policy and politics. It might just be the trump card he needs to bring House Republicans to the negotiating table.
Last summer, Department of Homeland Security Secretary Janet Napolitano announced the Deferred Action for Childhood Arrivals policy, which established the first program in which a subset of those here illegally could come forward and register with the government. If you were brought here as a child, are currently in school or the military and have no criminal record, you can get protection from deportation and you can petition for work authorization.
This program, aimed at so-called Dreamers, triggered a wave of enthusiasm in the Latino community, and many political analysts believe it helped the president weather 50% disapproval ratings last summer and win a historic 75% of the Latino vote in November. Nearly 520,000 people have received relief under this program since it was announced.
Now the president should turn again to this playbook and expand the program to other sympathetic categories of immigrants, such as those with a longtime presence in the United States or those with U.S.-citizen family members. The legal parameters and operational protocols have been established, and because this program, like the original Deferred Action program, would be funded from immigrants' fees, it would not require a congressional appropriation. An expanded Deferred Action program could be up and running within weeks.
Of course, those committed to defeating reform would trot out the tired criticism that the president doesn't enforce the laws on the books. They conveniently forget that both parties share the blame for the current system, and they ignore the record-low estimates of border crossing attempts and the record-high number of deportations. (A recent Pew Hispanic Center analysis found net migration from Mexico has fallen to zero in recent years.) Nothing the administration does would change their minds.
It is a near-certainty that expansion of prosecutorial discretion will occur if the House defeats all reform efforts or the House and Senate can't reach an agreement. Perhaps the president can force negotiations by reminding critics that, in the absence of real reform, a president — any party's president — still has to govern. For Boehner and the House GOP, the alternative to negotiating would be expanding "amnesty" without any of the security and business enhancements that the Republicans want and the nation desperately needs.
If the president acts boldly, he might be able to wrest a bill from Congress that could establish his legacy and, more important, secure the real immigration policy changes this country needs.
Nelson Peacock is a vice president with Cornerstone Government Affairs in Washington and the former assistant secretary for legislative affairs at the Department of Homeland Security.