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Legal Experts Agree: President Obama Has Broad Authority for Executive Action on Immigration

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From Michael Shear and Ashley Parker at the New York Times today comes the latest article gauging the state of play re: the White House and executive action on immigration enforcement.  A DHS review is under way, and Secure Communities is rumored to be getting a reboot — but no one is sure when exactly executive action might come, or what it might look like.

What experts are agreeing on, according to the Times piece, is the fact that Obama does have the authority to address his record rate of deportations.  In fact, many argue, on enforcement matters like immigration, the President has near-complete authority.  Check out the below excerpts from the Times:

Mr. Obama has more latitude than he lets on, legal experts say, and he may soon reveal how he intends to use it…

“Presidents have pretty much complete discretion when it comes to enforcing criminal and other statutory regimes,” said Peter J. Spiro, who teaches immigration law at Temple University. “President Obama can’t start handing out green cards. Short of that, from a legal perspective, there are no serious constitutional or other legal constraints that apply here.”

Instead, the constraints on Mr. Obama are mainly political….

It is far from clear that Republicans or their allies can prevail in a legal challenge to Mr. Obama’s executive authority on deportations.

Courts have consistently given presidents wide discretion to prioritize limited resources for various kinds of law enforcement, legal scholars said. In a ruling last year on a lawsuit by immigration agents, a federal judge dismissed the suit, saying that while an administration program that halted deportations of young unauthorized immigrants was illegal, the federal court did not have jurisdiction to hear the case…

“Every big-city police chief says we’re going to go after muggers, not jaywalkers, and it’s just as reasonable for Obama and Jeh Johnson to say we’re going to go after criminals, not housekeepers who are moms,” said Frank Sharry, the executive director of America’s Voice, a pro-immigration group.

The article also mentions Obama’s deferred action for DREAMers (DACA) program, which is notable because the fight to win DACA bears many resemblances to where Obama and the immigration reform movement are at today.  Pre-DACA, Obama had expressed doubt about his ability to launch such a program and worried about the backlash from Republicans if he did.  But he did introduce DACA, found wide public support for it, and reaped the goodwill from Latino voters at election time.  Immigration reform advocates are urging the President to do something similar this year for more of the 11 million.  As the New York Times piece concludes:

In 2012, current and former officials said White House lawyers were worried about the program for young adults, concerned that it might be illegal because it granted temporary work permits without congressional authorization.

“There was a lot of consternation in the White House counsel’s office about the legality of that,” one former senior administration official said. Kathryn Ruemmler, the White House counsel, declined to comment.

Officials said White House and Department of Homeland Security lawyers eventually concluded that the program was legal, in part because, technically, the president did not immediately grant legal status to a whole class of people. Instead, he set up a process by which people could apply for it, though, of course, nearly everyone who did so was granted it.

The same legal principle would apply if the president expanded the program to include parents, said Stephen H. Legomsky, who helped shape the program as the chief counsel for Citizenship and Immigration Services.

“It’s well-entrenched doctrine,” he said. “When it comes to enforcement, it’s the president’s call.”

The article makes one other point, about which we’ve heard a lot of chatter from anti-immigrant types, including Colorado gubernatorial candidate Tom Tancredo:

Some White House officials believe it could even lead Republicans to start impeachment proceedings against the president.

If Republicans want to impeach Obama for helping Latino, Asian and other immigrants, that’s their choice. Seems like they’d be accelerating their demographic demise. But, that’s their choice.