Fox News Can't Decide Whether Executive Action On Immigration Is Constitutional Or Not

Fox News is sending a mixed message about whether or not President Barack Obama has the legal authority to address the immigration crisis through executive action, even though legal experts agree that such action is perfectly lawful.

After Republicans in the House failed to consider a comprehensive and bipartisan immigration reform bill passed by the Senate, President Obama announced that he would take steps to address the issue through lawful executive actions. One possibility is the expansion of the Deferred Action for Childhood Arrivals (DACA) program, which temporarily halts deportation proceedings for young law-abiding undocumented immigrants -- an exercise of standard prosecutorial discretion typical of law enforcement agencies. After the Democrats lost control of the Senate on November 5, the president repeated his promise to move on immigration reform in the absence of congressional action, explaining at a press conference that “we're gonna take whatever lawful actions that I can take that I believe will improve the functioning of our immigration system.”

Some Fox News hosts were skeptical about whether the president has the authority to take unilateral executive action, however. On the November 7 edition of Outnumbered, co-host Andrea Tantaros complained that Obama “doesn't care about the constitution” and that he would “get away with” executive action on immigration because “some pointy-nosed Harvard lawyers [will argue] whether or not this is constitutional.”

Tantaros' complaints echoed her Fox colleague Sean Hannity, who on the November 6 edition of his show criticized the president's pledge to take executive action on immigration. In an interview with Sen. Mike Lee (R-UT), Hannity argued that the president “may not have the authority do this” and that “immigration law does not allow for the amnesty that the president wants to grant.” Lee agreed with Hannity's assessment, and suggested that the proposed order would “lead us from behind into a constitutional crisis” :

But legal experts largely agree that Obama's pledged executive action is constitutional. According to a letter signed by over 100 legal experts, the use of prosecutorial discretion “is a common, long-accepted legal practice in practically every law enforcement context,” including in immigration law. The letter continued:

There are multiple forms of immigration prosecutorial discretion. Discretion covers both agency decisions to refrain from acting on enforcement, like cancelling, serving or filing a charging document or Notice to Appear with the immigration court, as well as decisions to provide a discretionary remedy like granting a stay of removal, parole, or deferred action. A favorable grant of prosecutorial discretion does not provide formal legal status or independent means to obtain permanent residency. It does, however, provide a temporary reprieve from deportation. Some forms of prosecutorial discretion, like deferred action, confer “lawful presence” and the ability to apply for work authorization.

The application of prosecutorial discretion to individuals or groups is grounded in the Constitution, and has been part of the immigration system for many years. Furthermore, court decisions, the immigration statute, regulations and policy guidance have recognized prosecutorial discretion dating back to at least the 1970s. Notably, in 2012, the U.S. Supreme Court reiterated: “A principal feature of the removal system is the broad discretion exercised by immigration officials ... Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all[.]” Federal courts have also recognized prosecutorial discretion and with respect to deferred action in particular, discussed its reviewability.

As UCLA Law Professor Hiroshi Motomura explained, an expansion of DACA -- like the original use of prosecutorial discretion for DREAMers in 2012 -- is a way for immigration officials to utilize limited law enforcement resources to create “a list to prioritize who should be deported first.” In a Washington Post interview with Motomura, he explained how executive action is common sense:

“Here's how I think about it. If the president can make a list to prioritize who should be deported first, then I think it's clear that he can give people at the bottom of that list a piece of paper saying you're at the bottom,” Motomura says. “That's how I think about DACA. It's clearly within his discretionary power. But if he did this for every single immigrant, he would no longer be exercising his discretion. That would be problematic.”

Even Hannity's Fox News cohorts seem to understand this long-standing use of executive authority is legal. On the November 6 edition of The O'Reilly Factor, Fox News legal analyst Lis Wiehl explained how prosecutorial discretion works in an immigration context, noting a series of memos written by former U.S. Immigration and Customs Enforcement Director John Morton that have prioritized certain deportations over others since 2011, a formalization of prosecutorial discretion that "reaffirms many of the principles and policies of previous guidance." Wiehl pointed out that the memos “basically said to the ICE agents, you know, if you've got an illegal immigrant that's here, unless they've committed a felony or multiple felonies, don't go after them. The key words in these memos are ” prosecutorial discretion." What that means code for is, don't prosecute." O'Reilly followed up: “Okay, so this is like a town where the police chief would say to its cops, you know, if somebody's smoking marijuana in the street, low-level beef, ignore it. They do that in a lot of places[.]”

O'Reilly's panel pointed out that the memos weren't “legally binding,” but none of them questioned the constitutionality of prosecutorial discretion.  

Fox News host Megyn Kelly also admitted that the president has authority to use executive orders to address immigration reform and prioritize law enforcement resources. On the November 6 edition of The Kelly File, Kelly explained to her guest, Sen. Jeff Sessions (R-AL), that “the president does have prosecutorial discretion when it comes to immigration, the Supreme Court made that clear as recently as 2012” :