A full-fledged commentariat debate has begun over whether President Obama should use his existing legal authority to help protect immigrants from deportation, but Daniel Costa today at the Economic Policy Institute blog writes about something he thinks everyone else is missing. Yes, Obama’s existing powers allow him to de-prioritize the deportation of certain immigrants via prosecutorial discretion — and Obama explicitly has the power to grant employment authority to just about whoever he wants. The legal authority for the latter is found under the Immigration and Nationality Act (INA). As Costa writes:
INA Section 274A(h)(3) is not fully explored in any of their commentaries; in particular, subsection (B):
“(3) Definition of unauthorized alien. -As used in this section, the term “unauthorized alien” means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General.” [The Attorney General’s power here was transferred to the Secretary of Homeland Security after the creation of the Department of Homeland Security (DHS). Emphasis added.]
Subsection (B) admittedly almost looks like a throwaway line, but it’s a plain and fair reading of (B) to say that there are two routes for someone to receive employment authorization: either through explicit authorization in the INA or if the DHS secretary (a proxy for the president) says so, as long as there does not exist an explicit statutory prohibition. There’s a long list of regulations at 8 CFR § 274a.12 setting out the different “Classes of aliens authorized to accept employment,” which includes unauthorized immigrants who have received parole or deferred action. Those regulations derive their legal authority from INA § 274A(h)(3)(B). The authority to promulgate such regulations was challenged through the administrative process in 1987, but the argument was rejected. The result is that the DHS secretary has the authority to grant employment authorization via regulation under this statutory section.
In 2011, America’s Voice slammed the introduction of the HALT Act, a House GOP bill designed to prevent President Obama from using his executive powers for immigrants. Costa believes that the existence of the bill itself is a tacit acknowledgement of the President’s authority — especially since Congress chose not to legally bind it:
It may seem odd that no additional constraints are put on the DHS secretary in this regard, and it’s not clear to me that Congress intended to grant the executive branch this much authority (you’ll have to ask the 1986 Congress), but the language and result are clear. In 2011, then-chairman of the House Judiciary Committee Lamar Smith (R-Texas) introduced H.R. 2497, the “Hinder the Administration’s Legalization Temptation” Act (the “HALT Act”), which would have repealed the DHS secretary’s authority to grant EADs to anyone the secretary deems appropriate. But the HALT Act never got any further than a House Subcommittee hearing. Having granted the president this authority and then having chosen not to repeal it, Congress is in no position to complain about the president’s right to use it.
Costa sketches out how this power to grant employment authority presents one possible executive action Obama could take for immigrants this summer/fall:
This matters because—completely separate from the issue of deferred action—it presents the president with an alternative means to achieve the same ends. He could, for example, promulgate a regulation allowing all aliens to apply for an EAD if they can demonstrate that they: 1) have not committed any serious crimes; 2) have been continuously residing in the country for at least 5 years; and 3) have an immediate relative (spouse or child) who is a U.S. citizen. After being granted an EAD, but without being granted deferred action, these unauthorized immigrants would still be deportable, but could legally work in the United States. That, it seems to me, would be clearly legal, although admittedly an undesirable result because people who could legally work in the country could still be deported. That would allow employers to threaten their unauthorized immigrant employees with deportation if they ever ask for a raise or complain about unpaid wages or unsafe working conditions (even more than they do now, that is, because immigrants would have even more at stake). However, on the other hand, under the Morton Memos, which set out the administration’s deportation priorities, those EAD-holders (who would necessarily already have clean criminal records, a lengthy period of residence in the United States, and U.S. citizen immediate relatives), would be so far down on the list of deportation priorities, that they’d be unlikely to be deported from the interior. This wouldn’t be the same as having an official grant of deferred action, but they could be reasonably certain that they would not be detained and deported. I think this is a less-likely scenario, but it is a legal one.
Finally, Costa closes by reemphasizing Obama’s existing authority to enact prosecutorial discretion. Unless one believes that it’s feasible or desirable to deport all of America’s 11 million undocumented immigrants, there must be some priority for who goes and who stays:
The president has constitutional and statutory powers he can use to keep certain unauthorized immigrants in the country, for example, by granting pardons to unauthorized immigrants, or “parole” under INA § 212(d)(5)(A), or “deferred enforced departure” under the foreign affairs power in the Constitution. But it still makes the most sense for the president to use his prosecutorial discretion to enforce the law and create a new deferred action program like DACA for a specific subset of the unauthorized immigrant population. Here’s why: According to a former director of U.S. Immigration and Customs Enforcement, Congress only appropriates enough funds to deport of 400,000 unauthorized immigrants from the United States each year, which is roughly about 3.4 percent of the total population of 11.7 million. As a result, it is rational and efficient enforcement policy to set priorities regarding who should be sent home first. To me, this would be an obvious example of the president using prosecutorial discretion (and I am intentionally using and/or twisting Reihan Salam’s words here) as “a tool to allow the executive branch to achieve statutory objectives, not as a tool for changing policy.” The statutory objective is the deportation of unauthorized immigrants, coupled with the appropriations reality (reflecting Congress’s budgetary and enforcement priorities) of being able to deport 400,000 per year.
There would also be a significant public benefit: unclogging the overloaded immigration courts. And millions of U.S. citizens would benefit by not being separated from their spouses and children. That’s why it’s difficult to understand why it is so objectionable—indeed why Douthat and others consider it to be imperial-esque “Caesarism” or “lawless, reckless,” and “a leap into the antidemocratic dark”—for Obama to specify that 30 to 40 percent of the 96.6 percent of unauthorized immigrants that are not deported every year will be the last on the list to be sent home. The administration will still be doing a lot of deporting! In fact, with 6 to 7 million deportable immigrants left to find and deport, it’s doubtful that annual levels of deportations would even decline at all. And the president is well within the bounds of the law—explicitly authorized by the law, that is—to grant employment authorization to those unauthorized immigrants who are on the bottom of the deportation priority list so they can continue working, paying taxes, and contributing to the economy.