The story behind Obama’s immigration order

Gathered around a conference table one day in late April, Democratic senators had a specific request for White House aides: take a closer look at using executive power to shield young illegal immigrants from deportation.

One week earlier, Sen. Marco Rubio (R-Fla.) had told reporters about his plans to propose a scaled-back version of the Dream Act -– legislation designed to provide help to young immigrants. Democrats were skeptical that Rubio could gain his own party’s support for that idea. But seated in the big conference room next to Senate Majority Leader Harry Reid’s office, the senators pressed aides to the president to do more.

The White House officials responded that the Department of Homeland Security already had been discussing how to refine its deportation practices so officials could focus on the most serious cases.

The idea, they believed, had merit.


Over the next several weeks, administration officials reexamined the issue, diving into the legal precedents governing the president’s authority over immigration enforcement.

Since the second year of the administration, officials at the Department of Homeland Security, which oversees immigration enforcement, had operated on the understanding that, even without Congress overhauling immigration policy, executive officials could make certain decisions on a case-by-case basis when carrying out deportation law.

They knew the standard Obama and his top aides would apply. The president, a constitutional lawyer, believed that creating a special class of people entitled to particular rights was something only Congress could do. At the same time, however, if prosecutors could agree on how to exercise their judgment on a case-by-case basis, without any guarantees, that would be permissible as part of their discretionary power, according to a senior administration official familiar with the decision.

The White House had accepted that principle in two legal memos, one written in 2010 and the other in 2011, which underscored the leeway agency officials had on when to pursue a case and when to drop it.

The sheer volume of cases means the government can’t prosecute every single violator of immigration law, said one senior administration official, so enforcement agencies always have to pick and choose which cases to pursue based on the seriousness of each one.

This spring, officials considered how that principle could be applied to help the young immigrants who would be covered by the proposed Dream Act or, as the president had begun to call them, “the dreamers.”

By early June, Homeland Security officials had come up with criteria that would target the right population: young people who had been brought to this country before they turned 16, and whose promise and loyalty the country could least afford to lose.

Aides did not say when Homeland Security Secretary Janet Napolitano signed off on the idea, but they said the policy was substantially completed by the beginning of June.

The announcement this week comes after a tough run of luck for Obama, as he struggles to persuade Americans to stick with his economic plans despite dismal jobs figures.

He is also preparing to speak next week to NALEO, the national association of elected and appointed Latino leaders, amid a presidential race that will turn in part on whom Latino voters support.