President Obama’s expected action lifting the threat of deportation from millions of undocumented immigrants, which could come as early as this week, will expand the authority of the executive branch into murky, uncharted territory.
The path is built on the long-accepted principle, going at least as far back as the 1970s, that any administration should have wide discretion over how it deals with those who are in this country illegally. Obama, however, is poised to take that leeway significantly farther than before.
The move is certain to bring criticism that Obama has gone too far — ignoring the intent of Congress in passing the nation’s immigration statutes and violating the constitutional requirement that the president “shall take Care that the Laws be faithfully executed.”
But it is unclear whether the courts would be willing to intervene, given their traditional reluctance to get in the middle of disputes between the two other branches of government.
That means Obama will, in essence, be daring Congress to stop him — and betting that it won’t. “They have the ability, the authority, the control to supersede anything I do through my executive authority by simply carrying out their functions over there,” Obama said in an interview with CBS’s “Face the Nation.”
There is no small paradox — or, as his critics say, hypocrisy — in the fact that this potential showdown is being engineered by a president with a background as a constitutional law scholar and former senator who frequently criticized the George W. Bush administration for what he said was an overreach of executive power.
Those who believe Obama is going too far warn it is a dangerous precedent for future executives as well.
“Can a President who wants tax cuts that a recalcitrant Congress will not enact decline to enforce the income tax laws? Can a President effectively repeal the environmental laws by refusing to sue polluters, or workplace and labor laws by refusing to fine violators?” University of St. Thomas law professor Robert J. Delahunty and University of California at Berkeley law professor John C. Yoo wrote in the Texas Law Review.
Delahunty and Yoo served in the Justice Department during the George W. Bush administration. Back then, Yoo argued for an expansive definition of executive power, most famously in a series of memos maintaining that federal laws against assault, maiming and other crimes did not apply to interrogators dealing with al-Qaeda captives.
In the earlier years of his presidency, Obama often deflected appeals from Latino groups and other advocates to use his executive power to lift the threat of deportation from all 11.5 million immigrants estimated to be living in the country illegally.
“This notion that somehow I can just change the laws unilaterally is just not true,” Obama said in September 2011. “We are doing everything we can administratively. But the fact of the matter is, there are laws on the books that I have to enforce.”
The following year, however, the president took executive action to shield from deportation as many as 1.7 million immigrants aged 30 and younger whose parents had brought them to this country when they were children and to allow them to apply for temporary work permits.
Obama’s next move is expected to be an expansion of that program, known as Deferred Action for Childhood Arrivals, or DACA, that could include their parents. Obama is reviewing proposals that would allow up to 6 million undocumented immigrants to temporarily stay in the United States.
The expansion of DACA is not the same as granting this class of undocumented immigrants legal status, which Obama does not have the authority to do. Instead, Obama would be telling millions that they would no longer be targeted for deportation, a distinction that the next president could easily reverse.
As David Leopold, a Cleveland immigration lawyer, put it: “Does the policeman go after the bank robber, or does he go after the trespasser? It’s a question of setting priorities.”
Leopold argues that Obama is well within his authority to issue executive orders and would not usurp Congress or overstep his authority.
“The notion that the president cannot use his authority to grant temporary reprieve is patently absurd,” Leopold said.
It is an interesting historical footnote that the government’s acknowledgment of “prosecutorial discretion” in immigration cases can be traced to ex-Beatle John Lennon, who had come to the United States on a visitors’ visa. In the 1970s, the government began deportation proceedings against Lennon based on the fact that he had pleaded guilty to unlawful possession of cannabis resin in Britain.
Lennon won his case on appeal in 1975 after his attorney, Leon Wildes, scoured government records and produced evidence that the agency, then known as the Immigration and Naturalization Service, had quietly been using its discretion to allow thousands of other people to stay in the country.
The following year, INS General Counsel Sam Bernsen wrote a memo laying out how the agency should use its judgment in deciding which cases to pursue and which to let slide. “The reasons for the exercise of prosecutorial discretion are both practical and humanitarian,” Bernsen wrote. “There simply are not enough resources to enforce all of the rules and regulations that are on the books.”
Speaking in Australia last week, Obama insisted there is no contradiction between his earlier statements and the action he anticipates. Advocates had asked him to duplicate the legislation now stalled in Congress, which he said is not possible.
“There are certain limits to what falls within the realm of prosecutorial discretion in terms of how we apply existing immigration laws,” he said, adding that he would set aside his planned actions if Congress passed legislation he could sign.
Administrations since the 1970s have used their discretion in ways big and small.
After signing a 1986 amnesty law that gave legal status to an estimated 3 million immigrants who had arrived in the country before 1982, Ronald Reagan decided to allow their spouses and children — numbering about 1.5 million — to also remain in the country. Congress later wrote the exemption into legislation, which became law under George H.W. Bush.
In 1999, a bipartisan group from the House, including Reps. Lamar Smith (R-Tex.) and James F. Sensenbrenner Jr. (R-Wis.), wrote to then-Attorney General Janet Reno and then-INS Commissioner Doris Meissner asking them to “develop and implement guidelines for INS prosecutorial discretion” after a spate of what they said were unfair deportations that resulted in “unjustifiable hardship.”
In 2007, Julie Myers Wood, then the assistant secretary of U.S. Immigrations and Customs Enforcement, wrote a memo directing agents not to separate a nursing mother from her child.
“I think generally courts are pretty reluctant to get into what they think to be partisan fights, but this looks like it could be pretty extraordinary,” said Wood, who is now the chief executive of Guidepost Solutions.
No president has ever exercised his discretion as broadly as Obama is expected to. So one question that arises will be, “Do numbers alter this equation?” said Muzaffar Chishti, who is director of the Migration Policy Institute’s office at New York University School of Law.
Those who don’t agree with Obama’s use of executive action said that one remedy may be to have the states, rather than Congress, file lawsuits. House Speaker John A. Boehner (R-Ohio) has also said that he will consider expanding a proposed federal lawsuit over the Affordable Care Act to include possible executive action. The fate of that threat is uncertain however: After two major law firms bowed out, Boehner has yet to name a new lawyer to handle the litigation.
A lawsuit brought by border agents unhappy about DACA was tossed out last year on procedural grounds. But the Texas judge in the case, appointed by George W. Bush, said he believed the plaintiffs would have been “likely to succeed on the merits of their claim that the Department of Homeland Security has implemented a program contrary to congressional mandate.”
The options available for Congress include veto-proof legislation to rescind any executive action or cut off funds to implement the new regulations. Congress has a third option that would be an even heavier legislative lift: impeachment, which would require a majority vote in the House and a two-thirds vote in the Senate.
“I think the president wants a fight,” Rep. Tom Cole (R-Okla.) said on ABC’s “This Week.” “I think he’s actually trying to bait us into doing some of these extreme things that have been suggested. I don’t think that we will.”
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