WSJ Ignores Piles Of Precedent To Question Legality Of Obama's Immigration Order

The Wall Street Journal is misleading about President Obama's proposed executive action on immigration by suggesting he does not have enough legal authority to support the move.

As The New York Times recently reported, Obama is expected to announce as soon as this week an executive order aimed at improving the nation's immigration system. Although specific details about the order have yet to be disclosed, it is expected in part to build upon the Deferred Action for Childhood Arrivals (DACA) program, which has deferred deportation proceedings for some categories of immigrants. There is plenty of legal precedent and justifications for such a move, and even right-wing media figures like Fox News hosts Bill O'Reilly and Megyn Kelly have admitted that the president has the authority to take action on immigration in this way through the exercise of prosecutorial discretion.

But in a November 16 editorial, the Journal questioned whether Obama had the legal authority to issue his executive order because his administration hadn't yet received “written legal justification” from the Department of Justice's Office of Legal Counsel. The editorial also misrepresented how prosecutorial discretion actually works and ignored the use of similar executive orders on immigration by Republican presidents in the past.

From the editorial:

If the White House press corps wants to keep government honest, here's a question to ask as President Obama prepares to legalize millions of undocumented immigrants by executive order: Has he sought, and does he have, any written legal justification from the Attorney General and the Justice Department's Office of Legal Counsel (OLC) for his actions?

This would be standard operating procedure in any normal Presidency. Attorney General Eric Holder is the executive branch's chief legal officer, and Administrations of both parties typically ask OLC for advice on the parameters of presidential legal authority.


Yet as far as we have seen, Mr. Obama sought no such legal justification in 2012 when he legalized hundreds of thousands of immigrants who were brought to the U.S. illegally as children. The only document we've found in justification is a letter from the Secretary of Homeland Security at the time, Janet Napolitano, to law enforcement agencies citing “the exercise of our prosecutorial discretion.” Judging by recent White House leaks, that same flimsy argument will be the basis for legalizing millions more adults.

It's possible Messrs. Obama and Holder haven't sought an immigration opinion because they suspect there's little chance that even a pliant Office of Legal Counsel could find a legal justification. Prosecutorial discretion is a vital legal concept, but it is supposed to be exercised in individual cases, not to justify a refusal to follow the law against entire classes of people.

The Journal's claim that Obama and Holder “haven't sought an immigration opinion” from the OLC is apparently wrong. Speaking at a press conference at the G-20 summit in Brisbane, Australia, on November 16, in response to a question from the White House press corps, the president said that his administration has “talk[ed] to [the] Office of the Legal Counsel that's responsible for telling us what the rules are, what the scope of our operations are, and determining where it is appropriate for us to say we're not going to deport 11 million people.” Obama also stated that he had received advice from the attorney general about the limits of executive authority and the use of prosecutorial discretion in the enforcement of immigration law.

According to the report from the Times, Obama's proposed order is “based on longstanding legal precedents that give the executive branch the right to exercise 'prosecutorial discretion' in how it enforces the laws.” Moreover, the Times reported, the president had several “listening sessions” over the past year with “immigration activists ... armed with legal briefs” that will likely “form the basis of the public defense” of the forthcoming executive action. Hundreds of other legal experts have also weighed in on the legality of the pending executive order, but this is apparently not good enough for the editorial board of the Journal.

The Journal's claim that prosecutorial discretion “is supposed to be exercised in individual cases” and not for “entire classes of people” also misses the mark. In fact, previous Republican presidents like Ronald Reagan and George H. W. Bush have used it as the basis for executive action to defer deportations of certain groups of immigrants. According to the American Immigration Council, the Reagan administration issued an executive order in 1987 that halted deportations of Nicaraguans who had a “well-founded fear of persecution” -- an action that provided relief for upward of 200,000 immigrants living in the United States.

In 1989, then-President Bush announced an order that suspended the deportations of 80,000 Chinese nationals and provided some of them with work authorization permits. Bush, Sr. also expanded “blanket deferral to as many as 1.5 million spouses and children of immigrants who were legalizing, provided they met certain criteria.” Reportedly, Obama's plan will also seek to keep mixed-status immigrant families together by deferring deportation of undocumented parents or children. As the American Immigration Council explained, the executive action from former President Bush “protected over 40 percent of the then-unauthorized population from deportation,” approximately the same percentage reportedly about to be affected by Obama's similar efforts.

Photo by Pete Souza via Flickr under a Creative Commons License.