Right-Wing Media Wrong About The Legality Of The Upcoming Executive Orders On Immigration
President Obama is expected to announce immigration orders that build upon the 2012 Deferred Action for Childhood Arrivals (DACA) program and provide temporary administrative relief for certain undocumented immigrants, an exercise of prosecutorial discretion that right-wing media have attacked as “lawless.” But experts across the political spectrum acknowledge that this type of executive action has long been practiced and authorized under federal immigration law.
Reports Indicate Immigration Executive Orders Are Imminent
Right-Wing Media Has Been Misinforming About The Action For Months
The Executive Action Is A Type Of Long-Accepted Prosecutorial Discretion
Prosecutorial Discretion Is Widely Used By Law Enforcement, Not Just For Immigration
Republicans Supported The Same Type Of Prosecutorial Discretion In The Past
Even Fox News Hosts Recognize This Is Not Unprecedented
Obama Will Reportedly Announce Executive Action On Immigration
NY Times: Obama To Announce “A Broad Overhaul Of The Nation's Immigration Enforcement System” Through Executive Action. The New York Times reported that the president will announce a plan to issue an executive order to “protect up to five million undocumented immigrants from the threat of deportation,” which may defer action on deportation proceedings for undocumented parents of U.S. citizens, beneficiaries of DACA, or children otherwise legally present. Obama's plan is also expected to provide opportunities for undocumented immigrants to obtain work permits, similar to DACA:
Asserting his authority as president to enforce the nation's laws with discretion, Mr. Obama intends to order changes that will significantly refocus the activities of the government's 12,000 immigration agents. One key piece of the order, officials said, will allow many parents of children who are American citizens or legal residents to obtain legal work documents and no longer worry about being discovered, separated from their families and sent away.
That part of Mr. Obama's plan alone could affect as many as 3.3 million people who have been living in the United States illegally for at least five years, according to an analysis by the Migration Policy Institute, an immigration research organization in Washington. But the White House is also considering a stricter policy that would limit the benefits to people who have lived in the country for at least 10 years, or about 2.5 million people.
Extending protections to more undocumented immigrants who came to the United States as children, and to their parents, could affect an additional one million or more if they are included in the final plan that the president announces.
Mr. Obama's actions will also expand opportunities for immigrants who have high-tech skills, shift extra security resources to the nation's southern border, revamp a controversial immigration enforcement program called Secure Communities, and provide clearer guidance to the agencies that enforce immigration laws about who should be a low priority for deportation, especially those with strong family ties and no serious criminal history.
A new enforcement memorandum, which will direct the actions of Border Patrol agents and judges at the Department of Homeland Security, the Justice Department and other federal law enforcement and judicial agencies, will make clear that deportations should still proceed for convicted criminals, foreigners who pose national security risks and recent border crossers, officials said.
Officials said one of the primary considerations for the president has been to take actions that can withstand the legal challenges that they expect will come quickly from Republicans. A senior administration official said lawyers had been working for months to make sure the president's proposal would be “legally unassailable” when he presented it.
Most of the major elements of the president's plan are based on longstanding legal precedents that give the executive branch the right to exercise “prosecutorial discretion” in how it enforces the laws. That was the basis of a 2012 decision to protect from deportation the so-called Dreamers, who came to the United States as young children. The new announcement will be based on a similar legal theory, officials said. [The New York Times, 11/13/14]
Wash. Post: The President Has Been Focusing On Relief For Parents Of “U.S. Citizens Or Current Beneficiaries Of The 2012 Deferred Action Program.” Because the federal government does not have the capacity to deport the 11 million undocumented immigrants estimated to live in this country, DACA was designed to exercise prosecutorial discretion for law-abiding immigrants who came to this country as children, and it “did not provide an across-the-board change in legal status.” Nevertheless, conservatives have falsely characterized as “amnesty” this deferred action and similar relief, which seeks to continue to prioritize the deportation of those “who had committed felonies or were seen as safety or security risks”:
The anticipation that Obama is preparing to sign off on a major expansion of the 2012 relief program -- which has delayed deportations of more than 550,000 younger immigrants -- has prompted Republicans to begin framing such a move as more evidence of an imperial White House intent on circumventing Congress.
The House GOP already has approved a lawsuit accusing Obama of abusing his authority, focused on the administration's implementation of his signature health-care law. Sen. Jeff Sessions (R-Ala.), a leading opponent of loosening immigration laws, warned this week that a large-scale “administrative amnesty” would trigger a confrontation with Congress, saying in a floor speech: “Do not do this, Mr. President. You cannot do this.”
During a series of private meetings at the White House, Obama's advisers have peppered immigration lawyers and advocates with questions in an attempt to define a broader population of immigrants that might be eligible for a similar kind of relief that was granted to the young immigrants in 2012, a program called Deferred Action for Childhood Arrivals.
The discussions, according to those involved, have included a focus on the estimated 4 million to 5 million illegal immigrants whose children are either U.S. citizens or current beneficiaries of the 2012 deferred action program. Another area of focus was on how long an immigrant must live in the United States to establish deep ties. [The Washington Post, 8/1/14]
Right-Wing Media Have Been Attacking Obama's Executive Action Since Word Of It Became Public
NY Times' Douthat: Obama's Executive Action Is “Domestic Caesarism.” Conservative columnist Ross Douthat argued in The New York Times that “granting of temporary legal status” to half of the estimated undocumented immigrant community was “an extraordinary abuse of office.” Without any official details on what immigration action the president would take, Douthat went on to suggest that such deferred action would represent “domestic Caesarism”:
[E]ven as his team plays the impeachment card with gusto, the president is contemplating -- indeed, all but promising -- an extraordinary abuse of office: the granting of temporary legal status, by executive fiat, to up to half the country's population of illegal immigrants.
Such an action would come equipped with legal justifications, of course. Past presidents have suspended immigration enforcement for select groups, and Obama himself did the same for certain younger immigrants in 2012. A creative White House lawyer -- a John Yoo of the left -- could rely on those precedents to build a case for the legality of a more sweeping move.
But the precedents would not actually justify the policy, because the scope would be radically different. Beyond a certain point, as the president himself has conceded in the past, selective enforcement of our laws amounts to a de facto repeal of their provisions. And in this case the de facto repeal would aim to effectively settle -- not shift, but settle -- a major domestic policy controversy on the terms favored by the White House.
This simply does not happen in our politics. Presidents are granted broad powers over foreign policy, and they tend to push the envelope substantially in wartime. But domestic power grabs are usually modest in scope, and executive orders usually work around the margins of hotly contested issues.
[G]iven that the Democrats controlled Congress just four years ago and conspicuously failed to pass immigration reform, it's especially hard to see how Republican intransigence now somehow justifies domestic Caesarism. [The New York Times, 8/2/14]
Host Of Fox News' Outnumbered: Obama's Proposed Immigration Enforcement Prioritizing Deportations “Is Forcing The Impeachment Issue.” According to Fox News' Jedidiah Bila, the executive action the president is reportedly considering is “forcing the impeachment issue” because it would offer “executive amnesty to millions of people ... he's forcing us to bring that up because he refuses to enforce the laws as they stand.” [Fox News, Outnumbered, 8/4/14, via Media Matters]
Charles Krauthammer: Executive Action On Immigration Would Cause A “Constitutional Crisis And Stir Impeachment Talk.” Fox News contributor and Washington Post columnist Charles Krauthammer complained that executive action on immigration would be “so sweeping and egregiously lawless [that it] would be impeachment bait” - an unconstitutional action designed to goad Republicans into impeaching him:
The White House is coy as to exactly what the president will do. But the leaks point to an executive order essentially legalizing an enormous new class of illegal immigrants, perhaps up to 5 million people.
An executive order so sweeping and egregiously lawless would be impeachment bait. It would undoubtedly provoke a constitutional crisis and stir impeachment talk -- and perhaps even the beginning of proceedings -- thus scrambling the electoral deck. As in 1998, it would likely backfire against the GOP and save Democrats from an otherwise certain sixth-year midterm shellacking.
Such a calculation -- amnesty-by-fiat to deliberately court impeachment -- is breathtakingly cynical. But clever. After all, there is no danger of impeachment succeeding. There will never be 67 votes in the Senate to convict. But talking it up is a political bonanza for Democrats, stirring up an otherwise listless and dispirited base. [The Washington Post, 8/7/14, via Media Matters]
Newt Gingrich: An Executive Order Extending Temporary Relief Presents A Choice Between “Venezuelan-Style, Anything-I-Want-Is-Legal Presidency” And The Constitution. On the August 10 edition of Meet The Press, former Speaker of the House and current CNN host Newt Gingrich argued that if Obama “comes in around Labor Day with some grand scheme by executive order” to act on immigration reform, then Republicans should “taunt” Senate Democrats up for re-election into signing a bill condemning the order. Gingrich went on to suggest such executive action was unconstitutional. [NBC News, Meet the Press, 8/10/14, via Media Matters]
Mark Levin: Obama's “Plan” Is To “Violate The Constitution” By “Unilaterally Rewrit[ing] Our Immigration Laws.” On the October 3 edition of his radio show, Levin complained that Obama's use of executive orders would violate the constitution, and would “create 5 to 6 million Democrats” by potentially delaying deportations. Levin went on to claim that Obama's immigration reforms were supported by “ethno-thugs” like Rep. Luis Gutiérrez (D-IL) and Labor Secretary Thomas Perez. [Premiere Radio Networks, The Mark Levin Show, 10/3/14, via Media Matters]
Lou Dobbs: Planned Executive Action Is A Sign Obama “Is Ready To Rule By Fiat And Is Doing So.” On the October 21 edition of Fox News' America's Newsroom, Fox News host Bill Hemmer reported that a government contracting request for up to 34 million work permits and green cards “suggests plans for an executive action on mass amnesty.” Fox Business host Lou Dobbs then claimed this meant the president was considering extending DACA to “34 million over what time period, is entirely obviously at the will of the president.” Dobbs also said that this expansion of DACA was “further amnesty” and “social engineering.” [Fox News, America's Newsroom, 10/21/14]
Limbaugh: Only Impeachment Can Stop Obama From Transforming The Country With “Amnesty And Illegal Immigration.” On the October 30 episode of his radio show, Rush Limbaugh claimed that Obama plans to take executive actions on immigration and is “gonna do them in ways that he hopes will make them permanent. He's going to implement these things in ways that he hopes will make it impossible to unravel.” [Premiere Radio Networks, The Rush Limbaugh Show, 10/30/14]
But This Type Of Prosecutorial Discretion For Immigration Enforcement Has Long Been Legal
Leading Law Professors: Presidents Have Granted Deferred Action To Undocumented Immigrants “Historically and Recently.” In 2012, almost 100 law professors wrote a memo to the president explaining the decades-old legal precedent for the executive branch to exercise prosecutorial discretion and defer action on the deportation of certain undocumented immigrants. These arguments were used by the White House when it created DACA, a use of “clear executive authority” that is a “long-standing form of administrative relief”:
Deferred action is a long-standing form of administrative relief, originally known as “nonpriority enforcement status.” It is one of many forms of prosecutorial discretion available to the Executive Branch. A grant of deferred action can have any of several effects, depending on the timing of the grant. It can prevent an individual from being placed in removal proceedings, suspend any proceedings that have commenced, or stay the enforcement of any existing removal order. It also makes the recipient eligible to apply for employment authorization. General authority for deferred action exists under Immigration and Nationality Act (INA) § 103(a), 8 U.S.C. § 103(a), which grants the Secretary of Homeland Security the authority to enforce the immigration laws. Though no statutes or regulations delineate deferred action in specific terms, the U.S. Supreme Court has made clear that decisions to initiate or terminate enforcement proceedings fall squarely within the authority of the Executive. In the immigration context, the Executive Branch has exercised its general enforcement authority to grant deferred action since at least 1971. Federal courts have acknowledged the existence of this executive power at least as far back as the mid-1970s. [Letter, “re: Executive authority to grant administrative relief for DREAM Act beneficiaries,” 5/28/12]
UCLA Law Professor Motomura: DACA Was “Clearly Within [The President's] Discretionary Power.” As The Washington Post's Wonkblog reported, professor Hiroshi Motomura was the principal author of the 2012 memo that outlined the legal rationale for temporary administrative relief like DACA. According to Wonkblog, Motomura explained that the president could build upon the program as is being reported, which is essentially “a list to prioritize who should be deported first”:
The DACA program applies to any undocumented immigrant age 16 to 31 who came to the United States as a child, has either graduated from high school or is currently enrolled in school, and doesn't have a criminal record. The government basically promises not to deport these youths and adults for two years and allows them to work legally in the United States. They don't get permanent residency or a path to U.S. citizenship, however -- as they would have if Congress had passed the Dream Act.
As of June 2013, the administration had received more than 550,000 applications for DACA and approved about 72 percent of them. There were another 350,000 or so youths and adults in the country who likely qualify but either don't know about the program or can't pay the $465 application fee.
The Obama administration has defended DACA as a way of rationalizing its ongoing deportation policies. After all, there are 11 million undocumented immigrants currently in the United States, and Immigrations and Customs Enforcement has said it only has the resources to deport about 400,000 of them per year. Someone has to be at the bottom of the list. DACA was a way of formalizing those priorities. The “Dream Act kids” are officially at the bottom of the list.
The legal rationale for the DACA program was outlined in a letter drafted in 2012 by UCLA law professor Hiroshi Motomura and co-signed by nearly 100 top legal scholars around the country. In an interview last year, Motomura told me that Obama could conceivably expand that program, but there are limits to how far he can go.
“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.” [Wonkblog, The Washington Post, 2/4/14]
Former President Of American Immigration Lawyers Association (AILA): DACA And Similar Relief “Don't Even Come Close” To Violating the Constitution. David Leopold, former president of AILA, explained that accusations of lawlessness in regards to an expansion of DACA are “not even close to correct.” As Leopold explained in a blog post for The Hill, executive action of this sort is only the next step in formalizing what was already existing enforcement practice:
Critics have questioned the president's authority to do so. A broad, categorical deferral of deportation, they contend, grossly exceeds the President's executive authority amounting to “amnesty by fiat.” The Washington Post Editorial Board went so far as to warn that Congressional dysfunction “does not grant the president license to tear up the Constitution.” New York Times columnist Ross Douthat characterized it as an “extraordinary, reckless and (yes) ceasarist” abuse of executive authority, “worthy of outcry and opposition.”
Those are some pretty serious claims. Fortunately, they are not even close to correct.
Even Obama's most ardent critics must concede that his constitutional duty to faithfully execute the immigration law gives him wide latitude in its enforcement. What's less clear are the limits of that authority. How far can the president go?
The reason this is not an easy call is because the line between exercising discretion over enforcement and crossing over to policy making is often blurred. One thing that exemplifies this is determining when a case-by-case grant of discretion crosses over to a categorical grant. Critics like to argue that case-by-case exercises of discretion are acceptable but categorical are not.
But it does not follow that this crosses that line. As long as the administrative decision to defer the removal of a group of undocumented immigrants is legitimately aimed at more efficient use of law enforcement resources, it arguably falls well within the president's discretion. This includes the discretion to defer the deportation of undocumented immigrants -- individually or as a group -- if doing so allows the administration to focus resources on keeping the country safe.
In fact, presidents of both parties have used categorical grants of deferred action to postpone the deportation of large groups of undocumented immigrants, including abused women, hurricane victims and refugees.
Therefore, to violate the constitution, the president's action must be a dramatic, extraordinary departure from universally accepted exercises of executive discretion. DACA or its expansion don't even come close. [The Hill, 8/12/14]
Reason Foundation's Dalmia: Bipartisan Immigration Laws “Give The President Vast Discretion To Temporarily Legalize An Unlimited Number Of Foreigners.” Shikha Dalmia, a senior analyst at the libertarian Reason Foundation and a Washington Examiner columnist, pointed out that the conservative response ignored the fact that deferred action on immigration is “fully authorized” under existing immigration laws, according to Margaret Stock, a Republican immigration lawyer. Prosecutorial discretion in the immigration context has been used by multiple presidents in the past 50 years, including George W. Bush in the aftermath of Hurricane Katrina:
Conservatives are outraged that President Obama is threatening to use his executive authority to shelter undocumented foreigners from deportation now that immigration reform seems dead this year.
But whether they like it or not, existing immigration laws give the president vast discretion to temporarily legalize an unlimited number of foreigners.
This prompted New York Times columnist Ross Douthat to accuse the president of “domestic Caesarism.” Granting temporary legal status by executive fiat, he insisted, would be “an extraordinary abuse of office” and tantamount to rewriting existing immigration laws.
But Margaret Stock, a Republican immigration lawyer and a Federalist Society member, notes that such accusations don't appreciate that all this is fully authorized by those laws. “The Immigration and Nationality Act and other laws are chock-full of huge grants of statutory authority to the president,” she explains, a point also emphasized by the nonpartisan Congressional Research Service in its 2013 brief. “Congress gave the president all these powers, and now they are upset because he wants to use them. Other presidents have used the same authority in the past without an outcry.”
Most accept that the discretion that the executive branch enjoys in enforcing immigration law is as broad as what prosecutors enjoy in criminal law. And the reason is the same: More offenders than means to prosecute makes drastic prioritization necessary. But conservatives argue that failing to prosecute is not the same as legalizing, the further step that the president would be taking by issuing work permits.
But this is incorrect. Until Congress actually passes a law issuing permanent residency, nothing that Obama is suggesting would prevent future presidents from stripping these folks of their temporary status and deporting them. So an executive action falls short of “legalization” or “amnesty.”
Moreover, offering work permits isn't some further step. It's part of the deferral process. Once the president officially defers action against some folks (or offers them parole-in-place, which allows them to live in the United States with oversight) they automatically become eligible for work authorization under the Immigration Reform and Control Act of 1986 and driver's licenses under the Real ID Act of 2005. [The Washington Examiner, 8/7/14]
American Immigration Council: “There Is No Serious Doubt About The President's Legal Authority” To Defer Deportations. In an August issue brief, Motomura updated his legal arguments in support of the executive branch's long-standing authority to exercise prosecutorial discretion through deferred action. This temporary administrative relief is consistent with the immigration system Congress designed, and contrary to right-wing claims, "[n]o one is suggesting that the President unilaterally change the rules for granting permanent residence or citizenship":
Congress has created a system that requires the executive branch to create classifications for hands-on enforcement purposes, which in turn define the actual substance of immigration law. The President is the ultimate supervisor of executive branch officials who make countless discretionary decisions that determine who will be forced to leave the United States, and who can stay even if they are here unlawfully.
To be consistent with the rule of law, these discretionary decisions should be based on consistent and uniform application of enforcement priorities. Sometimes, government decisions to grant relief from deportation are made in the public eye. For example, immigration judges exercise judicial discretion on a daily basis, to grant relief in court hearings that follow criteria set out in statutes and case law. But far less visible are executive branch decisions about how to spend funds appropriated for enforcement, when to conduct raids at some homes and factories but not others, or whether to try to deport some noncitizens but not others.
[S]ome of the President's critics argue that he exceeded his legal authority with DACA, and that he lacks authority to make other groups of unauthorized migrants eligible for similar temporary relief. But that view is wrong because it ignores key facts. No one is suggesting that the President unilaterally change the rules for granting permanent residence or citizenship. All that is on the table are temporary reprieves. More fundamentally, the U.S. immigration system is one of selective admissions, selective enforcement, and broad executive branch discretion. As this system's chief prosecutor, the President must establish enforcement priorities, and then make sure that discretionary decisions to apply those priorities are uniform, predictable, and nondiscriminatory. As long as the President acts within this role, exercising his prosecutorial discretion to administer enforcement consistent with rule of law principles, he remains well within his legal authority. [American Immigration Council, “The President's Discretion, Immigration Enforcement, & The Rule Of Law,” August 2014]
Wash. Post's Sargent: Since Prosecutorial Discretion Is Legal, “Why Isn't It Also Legitimate To Refine Its Implementation In Ways Designed To Benefit The Country?” Reporting on a letter provided to him “over 130 professors, attorneys and experts,” Washington Post writer Greg Sargent explained that the letter recounted how the discretionary enforcement of immigration laws “is grounded in the Constitution and has been recognized in statute and regulations for decades.” Sargent also quoted the letter's rebuttal to claims that “the scale and numbers” of the expansion and accompanying work authorization make the action illegal. The letter said, “We are unaware of any legal authority for such an assumption”:
The argument continues as follows. There are multiple forms of prosecutorial discretion, of which “deferred action” is one. Deferred action, too, has existed as a category for many years -- and predates DACA. Therefore, DACA and/or its expansion confer an already existing designation and create no new form of immigration status. While deferred action does confer the ability to work, it did so before DACA. Deferred action -- before, and under DACA and/or its expansion -- merely provides a temporary reprieve from deportation, without providing any route to permanent residency or formal legal status. What's more, before DACA, previous administrations, and the Obama administration, granted deferred action not just to individuals, but to large classes as well.
In other words, the letter seeks to rebut the leading legal and political arguments against both DACA and its expansion -- the suggestion that granting deferred action status to groups crosses a line into rewriting or non-enforcement of the law; and the notion that it confers a quasi-amnesty status. Some have argued that the scale and numbers of those impacted by DACA and/or its expansion, combined with the awarding of work authorization and bureaucratic trappings, push the program into new territory. But the letter concludes:
Some have suggested that the size of the group who may “benefit” from an act of prosecutorial discretion is relevant to its legality. We are unaware of any legal authority for such an assumption...A serious legal question would arise if the administration were to halt all immigration enforcement, because in such a case the justification of resource limitations would not apply. But the Obama administration to date appears to have enforced the immigration law significantly through apprehensions, investigations, detentions and over two million removals. [Plum Line, The Washington Post, 9/3/14]
Wash. Post's Kessler: “Under No Circumstances Could Obama's Action Be Considered 'Amnesty.'” On the Post's Fact Checker blog, Glenn Kessler gave the right-wing claim that Obama intends to “give amnesty to 11 million illegal immigrants” a rating of “Four Pinnochios,” indicating the statement is a “whopper” of a falsehood. In fact, as Kessler explained, not only is the executive order that Obama is reportedly considering a temporary measure, "[i]mmigrants in theory would still face legal risk because an executive order can be changed by Obama's successor":
As we have noted before, “amnesty” is a loaded phrase when used in the context of illegal immigration. The dictionary definition is: “The act of an authority (as a government) by which pardon is granted to a large group of individuals.”
The Fact Checker does not take a position on the bill -- or on someone's belief that any path to citizenship is, in effect, “amnesty.”
But the Border Security, Economic Opportunity, and Immigration Modernization Act, which was approved in the Senate in 2013 on a vote of 68 to 32, including the support of 14 Republicans, did not contain anything as sweeping as that dictionary definition of amnesty.
If the bill had become law, undocumented aliens would have had to jump through all sorts of hoops before they could be considered for legal permanent residence, including registering with the government, having a steady job, paying a fine, paying back taxes, passing background checks, learning English -- and then getting in line behind immigrants who had entered the country legally. It would have taken at least 13 years before citizenship could be obtained.
By its very nature, a presidential executive order would be even less than that, since an executive order does not permanently change the law. [Fact Checker, The Washington Post, 11/3/14]
Law Enforcement Agencies Regularly Rely On Prosecutorial Discretion To Prioritize And Address Public Safety Threats
University of Chicago Law Professor Posner: Executive Branches Have The “Discretion To Choose Which Laws To Enforce And Which Laws Not To Enforce.” Although there are limits to the president's constitutional power to exercise discretion, professor Eric Posner explained that the flexibility to prioritize law enforcement aims is crucial because there is “never enough money to investigate, catch, and try all the people who have broken any given law.” Furthermore, “this goes double for immigration law,” and “presidents of both parties have deferred legal action against millions of people who entered the country unlawfully”:
This accusation [that Obama's executive order is lawless] is based on a misunderstanding of the law and our constitutional system, which gives the president the power of the executive. This power gives the president -- and other executive officials like governors and mayors -- discretion to choose which laws to enforce and which laws not to enforce. Yes, there are broad limits. For example, executives may not favor or disfavor ethnic or racial groups, which would violate the Constitution's guarantee of equal protection under the law. But in essence, when Congress gives the president money to go after lawbreakers, it's understood that the president must set priorities. There is never enough money to investigate, catch, and try all the people who have broken any given law. Discretion is built into the system.
This is hardly a new or controversial claim. The next time you jaywalk, speed, or trespass in front of a police officer that ignores you, you should be grateful for this practice. Underage students who drink and smoke marijuana on college campuses are pretty much immune to arrest. Most laws governing consensual sexual behavior are not enforced any more, even though they remain on the books. Many police departments will tell you to take a hike if you file a complaint about a nonviolent crime. When government agencies decide which types of corporate or tax fraud to investigate, and which types to ignore, they exercise executive discretion, as they do when they decide whether to shut down an undercapitalized bank or a restaurant that has served food that gives someone a stomachache. This is why a crusading prosecutor, like New York's Eliot Spitzer in his time, can decide to crack down on a type of conduct -- insider trading, accounting fraud, whatever -- that had previously been winked at. We live surrounded by “domestic Caesars.”
All of this goes double for immigration law. The president's authority over this arena is even greater than his authority over other areas of the law. For decades, presidents of both parties have deferred legal action against millions of people who entered the country unlawfully. As the immigration law experts Adam Cox of New York University School of Law and Cristina Rodriguez of Yale Law School have described in a paper, this has been going on at least since the 1940s.
In 2012, the Supreme Court recognized the vast discretion of the president over immigration policy. In the case Arizona v. United States, the court struck down several Arizona laws that ordered state officials to enforce federal immigration laws, on pain of state penalty. Arizona had argued that the federal government could hardly object when a state offers to enforce federal law. But as I wrote in Slate at the time, the court's decision necessarily assumed that in the immigration arena, where the federal government runs the show, Arizona's approach would cramp the president's authority by interfering with his discretion not to enforce immigration laws against some people. As [New York University law professor Adam] Cox puts it, in a recent academic article, the court's reasoning “gives executive branch officials near complete control over the content of immigration law.” [Slate, 8/12/14]
Former DHS General Counsel Sandweg: “Every Single Law Enforcement Agency In America” Uses Discretion To Address Law-Breaking. In an interview with The Washington Post's Greg Sargent, former Department of Homeland Security acting general counsel John Sandweg explained that using discretion to determine which undocumented immigrants to deport or which crimes to prosecute is hardly unique to the Obama administration. Using public safety as a guide for how to prioritize removals “has always been how the system has operated”:
SANDWEG: The president is doing what every single law enforcement agency across the country does: Put in place rational priorities to ensure that limited resources are focused on the populations that pose the greatest threat to public safety and border security. Every single law enforcement agency in America struggles with the fact that their resources are not conditioned to cover every single violation of the law. What prosecutors and police chiefs have done for years is implement enforcement priorities. That's what the president has done.
SANDWEG: There are very limited resources in the enforcement system. There are 11.5 million people in this country who are already technically in violation of immigration law. In 2012 ICE removed approximately 400,000 individuals -- the highest total in the government's history of removals. Approximately 200,000 of them were arrested in the interior. That is less than two percent of the undocumented population. This shows how limited the resources are and shows you have to make decisions. This isn't a zero sum game.
ICE officers have always exercised discretion, and always implemented priorities in terms of picking and choosing which types of cases to move to the front of the line over others -- prioritizing the removal of convicted criminals, or those just apprehended crossing the borders, above others. If you choose to expend resources on those who have been here 15 years and have never committed a criminal offense, that means somebody who has committed a felony is more likely to be able to stay in the U.S.
SANDWEG: There are only so many people ICE can remove from the United States. The question is, how do you choose which of the 11.5 million you are going to remove? If you begin by eliminating DACA and eliminating prosecutorial discretion policies, what you'd be doing is increasing the likelihood that the people removed are those who pose no threat to public safety. You'd be making it more likely that convicted criminals and people who just crossed the border are going to remain in this country. You'd be making the country less safe. If we eliminated all priorities, and treat them all equally, you are going to make the country less safe, and make the border less secure. [Plum Line, The Washington Post, 8/6/14]
Congressional Research Service: The Supreme Court Recently Affirmed Immigration Officers' Power “Not To Seek The Removal Of Certain Aliens.” In its examination of the “wide latitude” given immigration officials in their enforcement of the law, the Congressional Research Service (CRS) cited two recent Supreme Court cases that acknowledged executive authority in removal decisions. The most recent case, Arizona v. United States (2012), struck down a state's attempt to unconstitutionally usurp the federal government's discretionary authority over the deportation process:
In Reno v. American-Arab Anti-Discrimination Committee, a majority of the Supreme Court found that the various prudential concerns that prompt deference to the executive branch's determinations as to whether to prosecute criminal offenses are “greatly magnified in the deportation context,” which entails civil (rather than criminal) proceedings. While the reasons cited by the Court for greater deference to exercises of prosecutorial discretion in the immigration context than in other contexts reflect the facts of the case, which arose when certain removable aliens challenged the government's decision not to exercise prosecutorial discretion in their favor, the Court's language is broad and arguably can be construed to encompass decisions to favorably exercise such discretion. More recently, in its decision in Arizona v. United States, a majority of the Court arguably similarly affirmed the authority of the executive branch not to seek the removal of certain aliens, noting that "[a] principal feature of the removal system is the broad discretion entrusted to immigration officials," and that "[r]eturning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission." According to the majority, such exercises of prosecutorial discretion may reflect “immediate human concerns” and the “equities of ... individual case[s],” such as whether the alien has children born in the United States or ties to the community, as well as “policy choices that bear on ... international relations.” [Congressional Research Service, 12/27/13]
Republicans Encouraged Prosecutorial Discretion To Halt Deportations In The Past
New Republic: Republicans Previously Argued That The Government “Could Use Prosecutorial Discretion” To Prevent Deportations. As The New Republic's Brian Beutler reported, some of the same Republicans who are now fighting comprehensive immigration reform once signed onto a letter that called on then-Attorney General Janet Reno “to intervene on behalf of those facing unintended deportation.” The letter specifically asked for the sort of written guidance that DACA and its expansion provide, and argued that “the principle of prosecutorial discretion is well established”:
In 1996, the last time Congress passed a big package of immigration reforms, a class of immigrants with deep roots in the United States -- some authorized, most not -- became collateral damage. They stood to be kicked out of the country forever, and sent abroad to strange lands.
You can read about the plight of a subset of them in this incredible old Washington Post story. These were people who hadn't become citizens by sheer oversight: Adopted children who were brought to the country at a young age, legalized but never naturalized, and who went on to commit relatively minor infractions, which, for purposes of the 1996 law, amounted to “aggravated felonies” requiring their deportation.
The episode resurfaced briefly in 2011, when Republican Representative Lamar Smith, then chairman of the House Judiciary Committee, introduced legislation to dramatically limit President Barack Obama's discretion over immigration policy. In response, Democrats dredged up a letter Smith and other congressmen sent to Attorney General Janet Reno in 1999, asking her to intervene on behalf those facing unintended deportation.
Adjust for the fact that the relevant department has a different name today and you could use the same language to push the Obama administration to initiate or expand a program like DACA -- the president's deferred action program for DREAMers. It's a different category of people, but the principle is identical. Conservatives will note that Smith and his co-signers were technically describing internal guidance, analogous to the “Morton Memos,” which preceded DACA. But the main distinction between the two is that DACA made the internal guidance public, allowing DREAMers to come forward. Clearly Smith's goal wasn't to seek deportation protection for adopted immigrants and then never tell them about it. It was to get them off the hook, and provide certainty to them and others in their position.
The ironies pile up from there. Smith sent the letter precisely because Congress was too gridlocked to fix the problem with new legislation. Moreover, he was arguing that the government could use prosecutorial discretion even in this case, where the law spoke specifically to immigrants who had committed a certain level of felony. Joining him on the letter were Representative Kay Granger, who today leads Speaker John Boehner's working group on the border crisis, and Representative Nathan Deal, now governor of Georgia, who is demagoguing immigration in his re-election race. [The New Republic, 8/13/14]
American Immigration Council: The Most “Striking Historical Parallel To Today's Immigration Challenges” Was The Deferral Of Deportation Authorized By Reagan And Bush Sr. In a historical overview of prosecutorial discretion exercised for “temporary immigration relief,” the AIC pointed out that both Republican and Democratic presidents have engaged in acts similar to DACA for over 50 years. In fact, the former Republican presidents Ronald Reagan and George H.W. Bush both took executive action to defer deportation for specific groups of undocumented immigrants, with the latter exercising prosecutorial discretion for “over 40 percent of the then-unauthorized population”:
Perhaps the most striking historical parallel to today's immigration challenges is the “Family Fairness” policy implemented by Presidents Ronald Reagan and George Bush, Sr. The story behind the fairness policy begins on November 6, 1986, when President Reagan signed the 1986 Immigration Reform and Control Act (IRCA), which gave up to 3 million unauthorized immigrants a path to legalization if they had been “continuously” present in the U.S. since January 1, 1982. But the new law excluded their spouses and children who didn't qualify and forced them to wait in line, creating “split-eligibility” families, as they were called. The U.S. Catholic bishops and immigration groups criticized President Reagan for separating families.
In 1987, Reagan's Immigration and Naturalization Service (INS) commissioner announced a blanket deferral of deportation (logistically similar to today's DACA program) for children under 18 who were living in a two-parent household with both parents legalizing, or with a single parent who was legalizing. Then, in July 1989, the Senate passed legislation to protect a bigger group -- prohibiting deportation of all spouses and children of those who were legalizing under IRCA.
But the legislation stalled in the House, and in 1990 President Bush Sr. administratively implemented the Senate bill's provisions. His INS commissioner, saying “We can enforce the law humanely,” expanded the blanket deferral to as many as 1.5 million spouses and children of immigrants who were legalizing, provided they met certain criteria. President Bush thus protected over 40 percent of the then-unauthorized population from deportation. The House then passed legislation, and President Bush signed it later that year. [“Executive Grants of Temporary Immigration Relief, 1956-Present,” American Immigration Council, October 2014]
Fox News Hosts Recognize This Is Not Unprecedented
The O'Reilly Factor: “The Key Words” In The Legal Rationale For Deferred Action “Are 'Prosecutorial Discretion.' ” On the November 6 edition of The O'Reilly Factor, host Bill O'Reilly and his guest, legal analyst Lis Wiehl, discussed the so-called “Morton Memos” that formalized the Immigration and Customs Enforcement agency's ability to use prosecutorial discretion before commencing deportation proceedings and are the precursor of DACA. Wiehl explained 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 by noting that “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.” [Fox News, The O'Reilly Factor, 11/6/14, via Media Matters]
Megyn Kelly: “The President Does Have Prosecutorial Discretion When It Comes To Immigration.” In a segment with Sen. Jeff Sessions (R-AL) on the November 6 edition of The Kelly File, host Megyn Kelly explained that “the Supreme Court made [it] clear as recently as 2012” that “the president does have prosecutorial discretion when it comes to immigration,” as long he doesn't “broadly ignor[e] laws.” [Fox News, The Kelly File, 11/6/14, via Media Matters]