Up to now, the idea of legalizing up to 11 million unauthorized immigrants through executive order, otherwise known as Plan B, has been treated by the media as little more than a rhetorical flourish by Senator Marco Rubio (R-FL) to scare House Republicans into supporting CIR. Rubio is widely considered to be merely raising the specter of a bogeyman, i.e. President Obama, who would use dictatorial power to grant legalization without the border security and internal enforcement measures which Rubio and a few other Senate Republicans fought so hard and so successfully to include in the Senate's CIR bill, S. 744.

But what if there already is a Plan B waiting to be put into action by this administration? An August 15 article in slate.com by David Weigel reports that there may have been one since as long ago as 2010. His article originally appeared Thursday evening under the title: Is Rubio Right? Can President Obama Give Amnesty to Illegal Immigrants By Himself? Sort Of!

Then, only a few minutes later, perhaps because the code words "amnesty" and "illegal" in the first title might have given the impression of an anti-immigrant bias, the title, without any change in the article's content, was amended to: The Secret Memo That Explains How Obama Can Unilaterally Legalize All Immigrants, But Won't.

The memo referred to purports to be an internal DHS memo dated February 26, 2010 which only has the title Administrative Options. No author's name appears.

The 2 and 1/2 page memo, which is part of a 10 page memo dealing with other immigration issues as well, can be accessed by following a link in Weigel's article.

This platform will not let me show the link to Weigel's article correctly, so I recommend Google search in order to access it. Just type in the title and it should show up.

The DHS memo begins by stating the objective of a legalization program with two phases, very similar to those which were to be adopted three years later in the Senate's CIR bill.

Phase 1 would consist of registration of all qualified unauthorized immigrants (i.e. not security risks, or presumably, serious criminals) and issuing them work permits.

Phase 2 would consist of granting permanent residence for legalized immigrants who had fulfilled additional statutory requirements.

The memo goes on to state:

"In the absence of legislation, much of Phase 1 of the program could still be implemented, either by the Secretary of Homeland Security granting eligible applicants deferred action status or the President granting deferred enforced departure."

The memo then lists a number of pros and cons. Most of the pros include the benefits of bringing 11 million people of out of the shadows which we are familiar with in the current debate over CIR. However, one of them is particularly worthy of note in view of the current House obstructionism against legalization:

"A bold administrative program would transform the political landscape by using administrative measures to sidestep the current [as of 2010] state of Congressional gridlock and inertia."

Now for the cons:

First, there are the cons related to the political side: opponents could condemn legalization for all unauthorized immigrants as an "abdication" of duty to enforce the laws, an attempt to run around Congress (as it would be by definition), "amnesty", and "pandering" to Latino voters. Sound familiar?

But, three years after this memo was written, we do not have a Plan B for all unauthorized immigrants; it is there only for limited classes of people - DACA beneficiaries and "low priority" unauthorized immigrants. General legalization exists only in the form of S.744, passed in the Senate after full discussion and debate. But has going through the proper Congressional process in the upper chamber done anything to silence the shrill voices of opposition to "amnesty", "abdication" of duty to enforce the law, and "pandering" to Latino voters? Not very much.

However, the memo's next items on its list of cons are potentially more serious. They include possible Congressional attempts to limit or deny deferred action authority, either by statute (unlikely, however, as long as the Democrats control the Senate and the White House - they also controlled the House of Representatives when this memo was written), or by denying funding.

The latter might be a real possibility now with Republicans in control of the House. However, the two main arguments against sweeping administrative legalization appear at the end of the memo:


"An administrative solution could dampen future efforts for comprehensive reform and sideline the issue in Congress indefinitely."

Rephrased in today's terms three years later, this could mean losing the bipartisan support which was essential to drafting CIR in the first place and passing it in the Senate.

However, an even more serious obstacle could be one which was originally included in the memo and then apparently deleted, for some reason, namely the threat of legal action. Arguably, this should be the administration's greatest worry if Plan B is ever adopted, given the current make-up of the Supreme Court.

Here is my own suggestion as to how some of the above obstacles to Plan B, including the threat of legal action, might be avoided. Since anti-immigration House Republicans are so attached to a "piecemeal" approach to killing reform, i.e. death by thousand cuts (or half a dozen enforcement-only bills), why not implement legalization by executive action in a piecemeal way too?

As everyone on both sides knows, the process has already begun with last year's two initiatives mentioned above. There is no reason why this process could not continue incrementally, by creating additional subclasses of unauthorized immigrants to be granted administrative legalization or "deferred action" from time to time - starting, for example, with people who have young USC children and moving on from there in stages.

If anti-immigrant zealots can get away with using "piecemeal" anti-immigrant bills to kill comprehensive reform, what would be wrong with using piecemeal administrative legalization to accomplish it over time?