Exercising Prosecutorial Discretion Is Different From Issuing An Executive Order

Following the Obama administration's announcement that it will grant certain undocumented immigrants the chance to be exempted from deportation, Fox News claimed President Obama had issued the decision as an executive order, implying he did so to circumvent Congress. In fact, the change is an exercise of prosecutorial discretion that is consistent with the current law and has decades of precedent.

Policy Change Will Allow Eligible Undocumented Immigrants To Remain In The U.S. And Legally Work

Department Of Homeland Security Issued Policy Change Affecting Some 800,000 Young Undocumented Immigrants. From a press release by Department of Homeland Security Secretary Janet Napolitano:

Secretary of Homeland Security Janet Napolitano today announced that effective immediately, certain young people who were brought to the United States as young children, do not present a risk to national security or public safety, and meet several key criteria will be considered for relief from removalfrom the country or from entering into removal proceedings. Those who demonstrate that they meet the criteria will be eligible to receive deferred action for a period of two years, subject to renewal, and will be eligible to apply for work authorization.


Under this directive, individuals who demonstrate that they meet the following criteria will be eligible for an exercise of discretion, specifically deferred action, on a case by case basis:

1. Came to the United States under the age of sixteen;

2. Have continuously resided in the United States for a least five years preceding the date of this memorandum and are present in the United States on the date of this memorandum;

3. Are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;

4. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;

5. Are not above the age of thirty. [Dept. of Homeland Security, 6/15/12]

The Change In Immigration Policy Was An Exercise Of Prosecutorial Discretion

DHS Exercised Prosecutorial Discretion To Allow Young Immigrants To Remain In The U.S. DHS Secretary Janet Napolitano authored and signed the memorandum that dictated the new policy changes to immigration enforcement. From her memo to the U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, and U.S. Citizenship and Immigration Services (emphasis added):

By this memorandum, I am setting forth how, in the exercise of our prosecutorial discretion, the Department of Homeland Security (DHS) should enforce the Nation's immigration laws against certain young people who were brought to this country as children and know only this country as home. As a general matter, these individuals lacked the intent to violate the law and our ongoing review of pending removal cases is already offering administrative closure to many of them.


This memorandum confers no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights. It remains for the executive branch, however, to set forth policy for the exercise of discretion within the framework of the existing law. I have done so here. [Signed] Janet Napolitano [Department of Homeland Security, 6/15/12]

Executive Orders Are Signed By The President And Received By The Office Of The Federal Register. The change in immigration policy was set forth in a memorandum written and signed by Napolitano. To be an executive order, the memo would have needed to be an official document bearing Obama's signature and published in the daily Federal Register:

Executive orders are official documents, numbered consecutively, through which the President of the United States manages the operations of the Federal Government.

The text of Executive orders appears in the daily Federal Register as each Executive order is signed by the President and received by the Office of the Federal Register. The text of Executive orders beginning with Executive Order 7316 of March 13, 1936, also appears in the sequential editions of Title 3 of the Code of Federal Regulations. [National Archives, accessed 6/15/12]

GOP Attorney General: Decision Was Not An Executive Order. In an interview with the Washington Post's Greg Sargent, conservative Utah Attorney General Mark Shurtleff, a supporter of Republican Mitt Romney, brushed off the notion that the immigration policy change occurred via executive order:

Republicans and conservatives have argued either that Obama did this by executive order or more broadly that ignoring Congress represents dictatorial rule by fiat. But Shurtleff rejected that view, noting that this decision was not made via executive order and that the administration has the discretion to decide whom to prosecute.

“Law enforcement makes decisions based on the resources available to them -- until Congress acts, we'll be left with too many people to deport,” Shurtleff said. “The administration is saying, 'Here's a group we could be spending our resources going after, but why? They're Americans, they see themselves as Americans, they love this country.'” [The Washington Post, The Plum Line, 6/15/12]

Prosecutorial Discretion Is Widely Accepted And Utilized By Immigration Officials

Prosecutorial Discretion Is The Authority Of A Governmental Agency “To Decide What Charges To Bring And How To Pursue” A Case. The Immigration Policy Center explained:

“Prosecutorial discretion” is the authority of an agency or officer to decide what charges to bring and how to pursue each case. A law-enforcement officer who declines to pursue a case against a person has favorably exercised prosecutorial discretion. The authority to exercise discretion in deciding when to prosecute and when not to prosecute based on a priority system has long been recognized as a critical part of U.S. law. The concept of prosecutorial discretion applies in civil, administrative, and criminal contexts. The Supreme Court has made it clear that “an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion.” Heckler v. Chaney, 470 U.S. 821, 831 (1985). [Immigration Policy Center, 9/9/11]

Expert: “All Law Enforcement Agencies” Have Prosecutorial Discretion, “Including Those That Enforce Immigration Laws.” From a report by American Immigration Lawyers Association president David Leopold:

Prosecutorial discretion is the authority of an agency charged with enforcing a law to decide whether to enforce, or not to enforce, the law against someone. The exercise of discretion is central to American law enforcement and upholding the rule of law. All law enforcement agencies, including those that enforce immigration laws, have the authority to decide who within their jurisdictions to investigate, arrest, detain charge, and prosecute. When it comes to immigration law, the exercise of prosecutorial discretion not only conserves limited enforcement resources, but also protects core American values of humanitarianism and fairness. [American Immigration Lawyers Association, 5/16/11]

Immigration Authorities Have Been Using Prosecutorial Discretion To Stop Deportation Proceedings For More Than 30 Years. In a 2009 article, Penn State law professor Shoba Sivaprasad Wadhia stated that in the immigration context, “The use of prosecutorial discretion ... was revealed by INS [Immigration and Naturalization Service] in 1975 as a consequence of a lawsuit involving John Lennon and Yoko Ono.” Wadhia added that before 1975, prosecutorial discretion “was a secret operation of the INS.” [Connecticut Public Interest Law Journal, “The Role of Prosecutorial Discretion in Immigration Law,” 9/21/09]

By 1975, Immigration Officials Were Factoring Humanitarian Considerations, Youth, And Longtime Presence In U.S. Into Immigration Cases. Wadhia stated that in 1975, the government issued instructions stating that if deportation of a person was “unconscionable because of the existence of appealing humanitarian factors,” government officials should not deport that person. Other factors to consider while exercising prosecutorial discretion included “advanced or tender age” and “many years' presence in the United States.” [Connecticut Public Interest Law Journal, “The Role of Prosecutorial Discretion in Immigration Law,” 9/21/09]

But Fox News Criticized Obama By Falsely Labeling The Policy Shift An Executive Order

Anchor Megyn Kelly Wondered If The Policy Change “Is Essentially An Executive Order.” On America Live, host Megyn Kelly teased her segment on the immigration policy changes by prompting, "[Obama's] critics are saying this is essentially an executive order, that puts into effect the so-called Dream Act, which Congress refused to pass." [Fox News, America Live, 6/15/12]

Correspondent Ed Henry: Obama Is “Doing This By Executive Order.” On America Live, chief White House correspondent Ed Henry asserted in his report: “Megyn, he's doing this by executive order.” [Fox News, America Live, 6/15/12]

Host Dana Perino: “All Of A Sudden, [Obama] Figured Out That He Can Do This By Executive Order.” From a discussion on The Five:

ERIC BOLLING (co-host): This is about the President using his pen to subvert Congress when Congress should be voting on this.


PERINO: All of a sudden, he's figured out that he can do this by executive order, so he makes this statement, that, he said several times, 'let's be clear' and 'it's the right thing to do.' I mean, I heard it so many times I could have written the speech for him myself. [Fox News, The Five, 6/15/12]

Contributor Steve Hayes: Obama Made The Policy Change “By Executive Fiat.” During a panel discussion on Special Report, Fox News contributor Steve Hayes from The Weekly Standard questioned Obama's “process” in making the immigration policy change: “Should the president be doing this by, sort of, executive fiat? I think not.” [Fox News, Special Report with Bret Baier, 6/15/12]

Host Sean Hannity Accused Obama Of Trying To “Rule By Executive Fiat.” From The Sean Hannity Show:

HANNITY: Remember, we have a constitution. We have a procedure. We have laws of the land. And what the president has decided here is that he is going to pick and choose and basically rule by executive fiat, ignore the power that is constitutionally given to the United States Congress, and do an end-round around these guys, and basically dictate what is going to happen here. [Premiere Radio Networks, The Sean Hannity Show, 6/15/12]

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