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Legal Experts: President Obama Has Broad Authority to Act on Immigration

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The Washington Post editorializes today against President Obama using his executive authority to change immigration enforcement.  What’s curious is that a Post editorial from this past April stated:

In fact, all law enforcement involves setting priorities.  Even most Republicans acknowledge that deporting 11 million illegal immigrants, many of whom are employed and have been present in this country for a decade or more, is fantasy. Yet even as Mr. Obama’s approach has broken up countless families with deep roots in the United States, it has been politically fruitless.  Given the human costs, what is the point of maintaining such a rigid policy, especially one at odds with the president’s stated goals?  In particular, why continue to expend scarce law enforcement resources on deporting undocumented immigrants with no criminal records or whose offenses involve loitering or minor traffic violations?

Below, we present a sampling of key legal experts and other observers disagreeing with the latest editorial from the Post and noting that the president has broad executive authority on immigration:

  • New York Times editorial,  “Mr. Obama, Go Big on Immigration”: One of the nation’s other leading editorial boards, the New York Times, wrote in July, “Mr. Obama should do his utmost, within the law, to limit the damage done by an obsolete, unjust system that is deporting the wrong people, stifling businesses, damaging families and hurting the economy.  It starts with giving millions of immigrants permission to stay, to work and to live without fear.  Mr. Obama needs to scale back the deportation machinery, which he greatly expanded.  His decision two years ago to halt deportations of young immigrants called Dreamers was a good first step.  Now he should protect Dreamers’ parents, and, if possible, parents of citizen children.  His emphasis should be on protecting families and those with strong ties to this country, and on freeing up resources to fight human traffickers, drug smugglers, violent gangs and other serious criminals.  He should end programs that recklessly delegate immigration enforcement to local police.  He should make it easier for family members of citizens to seek green cards without having to leave the country for three or 10 years.  Through common-sense fixes to onerous visa restrictions, wise use of prosecutorial discretion and new programs to allow groups of immigrants to apply to stay and work legally, Mr. Obama should move the system away from its deportation fixation, and closer toward balance.”
  • Time, “Obama Eyes Major Immigration Move”: Stephen Yale-Loehr of Cornell University Law School told Alex Altman of Time, “As a purely legal matter, the President does have wide discretion when it comes to immigration…Just as DACA was within the purview of the president’s executive authority on immigration, so too would expanding DACA fall within the president’s inherent immigration authority.”
  • Politico, Barack Obama’s Immigration Moves Could Be Unstoppable”: Politico’s Josh Gerstein consulted with legal experts for a late July story that noted, “other experts say most lawyers in the field believe Obama has few restrictions on his ability to decide how and when the U.S. deports immigrants.”  For example, Gerstein quotes former INS head Doris Meissner stating, “He’s got a continuum of options from a fairly narrow reworking of deportation priorities all the way to a new program of some kind that would allow more numbers of people to apply for work permits of some kind.”
  •  The New Republic, “Obama Will Review Deportations.  Here’s What He Can Do to Stop Them”:  Nora Caplan-Bricker, formerly of The New Republic, interviewed a series of legal experts to assess executive action.  Among those quoted include Michael Wishnie of Yale Law School, who said, “I think there’s little serious question that the administration has broad discretion in almost every aspect of the deportation machine,” and Hiroshi Motomura of the UCLA School of Law, who said, “He would reach political constraints long before he reaches legal ones.”
  •  New York Times, “In the White House, Debating How Far to Go in Easing Deportations”: The assessment from Michael Shear and Ashley Parker of the Times included an interview with Peter Spiro of Temple University, who noted, “Presidents have pretty much complete discretion when it comes to enforcing criminal and other statutory regimes…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.”
  •  Center for American Progress analysis, “What the President Can Do on Immigration If Congress Fails to Act”: CAP’s Marshall Fitz authored this July 2014 analysis, which notes, “The administration has wide latitude in establishing its enforcement priorities, including deciding how to spend the resources that Congress appropriates for immigration enforcement, and whether to pursue enforcement against certain individuals. It also has the discretion to identify individuals with certain equities—mitigating factors such as family or community ties, employment history, or length of residence in the United States—and authorize them to affirmatively request temporary relief from deportation.”
  •  Bloomberg Law analysis from David Leopold, “What Legal Authority Does President Obama Have to Act on Immigration?”: Leopold, past president of the American Immigration Lawyers Association (AILA), drafted a short memo for Bloomberg Law that assesses executive authority on immigration.  The memo reads, in part, “if he does implement a major executive action, he will be promptly accused for transgressing the limits of his legal powers.  Such allegations would be baseless.  The executive branch has well‐established authority as well as the duty to exercise prosecutorial discretion at all times in the enforcement of our immigration laws.  Whether it is deferred action, parole, or something else, these concepts are grounded in statute, regulations and sound principles of law enforcement.  Those who assail the President will no doubt have lots of arguments to draw upon.  But the President’s lack of executive branch power is not one of them.”    
  •  Legal experts’ memo with analysis and background on immigration executive authority: This May 2011 memo from former INS leaders and lawyers provides a good, and still relevant, primer on presidential authority on immigration.
  •  Letter from 90 immigration law professors a on executive action: Addressed to President Obama and issued in May 2012, just before the announcement of Deferred Action for Childhood Arrivals (DACA),  the letter signers assert that the President has broad authority on matters of on immigration.
  • Shoba Sivaprasad Wadhia, a nationally recognized scholar of immigration law from Penn State, delivered remarks at Howard University in 2014 on the same topic.