The Legality of the Administration's Position on Immigration

In the wake of President Obama's announcement last week that his administration would exercise prosecutorial discretion not to deport certain young people--undocumented aliens brought to the U.S. by their parents--Republicans cried foul and accused the President of overstepping his bounds by violating the law and not just enforcing it.  

Representative Steve King (R-IA) apparently moved one step closer to filing a lawsuit to stop the administration's move, citing separation-of-powers concerns.  Although we haven't seen a complaint yet, Rep. King argues, according to the Daily Caller, that the President's move was "constitutional overreach."  According to King:

If he can do this by memorandum, then he can raise the debt limit by the same standard.  He could argue that he's not going to audit nor enforce tax collection on certain classes of people.  He could do that by age group.  He could do that by race, by ethnicity.  The president can do anything he wants to do.

According to the story, Rep. King's "central argument" is that "the president has legislated by memorandum."

Rep. King's legal claims aren't particularly developed--they're bald, they overstate any slippery slope, and they're at least in part obviously false--but they well represent the kinds of claims we've heard from opponents of the President's move.

On the other side, a group of immigration and constitutional law professors sent this letter to the White House late last month, outlining three different ways that President might exert prosecutorial discretion under the law and prior practice.  According to the profs, the President could use "deferred action," "parole-in-place," or "deferred enforced departure" to support his prosecutorial discretion not to deport this class of individuals.  The profs argue that these methods are supported in both law and prior executive practice.

Indeed, Secretary Janet Napolitano's memorandum implementing the President's announced practice draws on deferred action, even if it doesn't cite specific authority (as the profs do).  The memo is careful to emphasize "prosecutorial discretion," attention to "enforcement priorities," and case-by-case consideration, ensuring that the practice stays on the execution-side of that sometimes fuzzy line between lawmaking (reserved for Congress) and law-executing (reserved for the President).  

The memo sets out 5 criteria for individualized consideration and says,

Our Nation's immigration laws must be enforced in a strong and sensible manner.  They are not designed to be blindly enforced without consideration given to the individual circumstances of each case.  Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language.  Indeed, many of these young people have already contributed to our country in significant ways.  Prosecutorial discretion, which is used in so many other areas, is especially justified here.

As part of this exercise of prosecutorial discretion, the above criteria are to be considered whether or not an individual is already in removal proceedings or subject to a final order of removal.  No individual should receive deferred action under this memorandum unless they first pass a background check[,] and requests for relief pursuant to this memorandum are to be decided on a case by case basis.  DHS cannot provide any assurance that relief will be granted in all cases.

Opponents, like Representative King, seem to argue that President Obama's announcement represents a blanket policy that thrusts into the lawmaking power reserved for Congress.  But Secretary Napolitano's memo makes clear that this is no blanket policy; it is more like guidance to ensure that enforcement officers take the administration's priorities into account when determining whether to pursue deportation on a case-by-case basis.  And the law profs' letter shows why this exercise of prosecutorial discretion is supported by law and past executive practice.

Also working against opponents: Both the House and the Senate last year introduced legislation, but then let it stall in committee, to rein in the President's authority to do exactly what he did.  The bills, cleverly titled the Hinder the Administration's Legalization Temptation, or HALT, Act, H.B. 2497 and S. 1380, are both tied up in committees.  The bills, by moving to rein in the President, also recognize that the President has prosecutorial discretion.  Yet Congress didn't pass them, or even, apparently, prioritize them.

SDS