5 things Obama can and can't do on immigration

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Story highlights

  • Beyond political rhetoric, there are limits on Obama's powers on immigration
  • The President can prioritize who gets deported, putting violent criminals at the top of the list
  • He cannot, as some in the GOP want, put immigrant kids on buses bound for Central America
  • In many cases, the President does have to work with Congress in crafting immigration reforms

President Barack Obama is vowing to act on his own due to House inaction on immigration reform that proponents say could help address a wave of undocumented kids crossing the border from Mexico. But there are limits to the power of his pen.

Yes, the President can send National Guard troops to the border as some House Republicans insisted at recent congressional hearing on immigration.

No, the administration can't put immigrant kids "on a bus like we normally do and send them back down to Guatemala," as Alabama Republican Rep. Mike Rogers suggested.

The children have arrived in droves after fleeing violence and poverty in Central America and are seeking "permisos" or a pass to stay in America.

Thousands are being held in detention facilities as the Obama administration tries to figure out what to do.

And while Obama promises "a new effort to fix as much of our immigration system as I can on my own, without Congress," Speaker John Boehner and other House Republicans criticize him for being "intent on going it alone with executive orders that can't and won't fix these problems."

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Boehner has said he intends to sue Obama over how he's used his executive authority to bypass Congress.

Beyond the political back-and-forth, there are some things Obama can and cannot do by way of executive action on immigration.

What he can do

1. He can tweak and fine tune existing guidelines on who to prioritize and prosecute in deportation hearings.

2. Obama can dispatch more border patrol agents as well as members of the National Guard.

3. And Obama could opt to continue a program for some who were brought to the United States as kids. It is important to note that this program allows them to temporarily stay in the country and work or attend school. It is not a path to legalization.

4. The President could also continue a practice in some states of using ankle bracelets or weekly mandatory check-ins with immigration officials as an alternative to detention.

5. And he could move to increase the amount of free legal assistance to immigrants in deportation hearings.

"If the transfer of resources involves moving judges down to that area so they can process the caseload and more asylum officers to conduct interviews with these children then we're in a zero-sum game," said Kamal Essaheb, a policy attorney National Immigration Law Center. "Those resources are being taken away from other areas. We would welcome Congress appropriating more money so everyone can get their day in court and a quick day in court."

What he can't do

1. The president can't bar people from applying for political asylum. Those guidelines are set by the United Nations Refugee Convention, which the United States has signed, said Stephen Yale-Loehr, an immigration attorney and professor at Cornell University Law School.

2. And no, the President can't increase the number eligible for green cards because their spouses or parents are U.S. citizens. Such matters are set by law. Though some immigration advocates have argued spouses and children shouldn't count toward 140,000 limit on employment-based green cards, whether the President can make that kind of change unilaterally is murky territory.

3. Obama also can't just eliminate judicial review for people ordered deported — such a move would violate the Constitution.

4. Nor can he just load up all undocumented immigrants on a bus and deport them without some sort of legal hearing. That type of action also would violate the law.

"The Constitution says that all persons have due process rights in the U.S. whether they are from another country or the U.S.," Yale-Loehr said.

5. And, for those hoping for (or fearing) a blanket executive action legalizing all undocumented immigrants, no the President can't do that either. There's a law for that.

"There are constitutional limits on what the president can do. We have a tripartite government system. The Congress enacts the laws; the President implements the laws," Yale-Loehr said. "The President cannot create an immigration policy willy-nilly, whole cloth. He cannot create an immigration law. He has to get Congress' approval to change an immigration law. "

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