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Legal Scholars in Agreement: President Has Broad Authority to Act on Immigration

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Over the past 60 years, every President has taken immigration-related executive actions – a total of 39 different occasions.  Both Ronald Reagan and President George H. W. Bush took executive action on immigration, with the Bush Administration issuing a Family Fairness policy that allowed 1.5 million spouses and children of legalized immigrants – approximately 40% of the undocumented population at the time – to apply for deferred action and work authorization.  

As Henry Fernandez writes on MSNBC.com:

There are good policy reasons to provide relief from deportations.  It would stop many children from being separated from their parents – one study found that 72,410 individuals deported last year had children who were American citizens.  It would also speed up the economic recovery by creating new jobs, as newly legalized immigrants already in the U.S. earn more and thus have more to spend.  People can disagree on whether these are good policy reasons for the president to take executive action, but he clearly has the authority to do so.  Obama has the law on his side – as well as Presidents Eisenhower, Kennedy, Johnson, Nixon, Ford, Carter, Reagan, Bush Sr., Clinton and Bush Jr.

A range of new opinion pieces and reporting highlight agree with Fernandez’ conclusion:

In a piece titled, Federalist Society Legal Scholars Begrudgingly Accept Obama’s Immigration Powers,” Sam Stein of the Huffington Post reports on a recent gathering of the conservative legal organization, the Federalist Society – where the consensus was that the president does have the legal authority to proceed with executive action.  As Stein writes:

by and large, the panelists agreed the president has wide legal latitude to prioritize and shape deportation laws, as regrettable for Republicans or the long-term balance of powers that may be.”  For example, Stein quotes from Christopher Schroeder, the Charles S. Murphy Professor of Law and Public Policy Studies at Duke Law School, saying, “I think the roots of prosecutorial discretion are extremely deep…The practice is long and robust.  The case law is robust.  Let me put it this way: Suppose some president came to me and asked me in the office of legal counsel, ‘Is it okay for me to go ahead and defer the deportation proceedings of childhood arrival?’  Under the present state of the law, I think that would be an easy opinion to write.  Yes.

The New Republic publishes an op-ed from legal scholars Erwin Chemerinsky and Samuel Kleiner, titled, “Obama Has the Law—and Reagan—on His Side on Immigration.”  After summarizing the basis of the president’s authority, the authors conclude:

The president clearly has the power to limit deportation of an individual or a group of individuals, even a large group.  Such action does not grant citizenship to the undocumented; it merely is a temporary measure that halts deportations.  It is not a permanent fix to the intractable challenge of how to deal with undocumented immigration, but it is increasingly looking like the only solution that the president has in facing an intransient Congress that is unwilling to act.

Eric Posner pens an opinion piece for the New York Times titled, “The Constitutional Authority for Executive Orders on Immigration is Clear.” Posner, a professor at the University of Chicago Law School, writes:

[T]he sensible thing to do in the area of immigration law is to bring removal proceedings against the most serious violators — typically, criminals — while leaving otherwise law-abiding noncitizens alone.  Given that Congress has not appropriated nearly enough money to deport 10 million or more people, this type of priority-setting is unavoidable, and not merely wise.  Indeed, the president is just following in the footsteps of his predecessors, who also focused removal efforts on dangerous aliens.  Congress has acquiesced in this practice for years.  The president’s discretion over immigration is deeply interwoven in our law.  As the Supreme Court recognized just two years ago, in the course of summarizing the statutory scheme: ‘A principal feature of the removal system is the broad discretion exercised by immigration officials.’  The only difference between the president and his predecessors is that the president has openly declared the de facto policy of his predecessors. We might disagree about whether this move is wise, but it’s not a constitutional violation.

A Los Angeles Times piece titled, “President Obama’s Immigration Plans Hard to Block, Legal Experts Say,” states:

Although the program is likely to push the limits of presidential power, immigration law experts predict opponents will have a hard time stopping him.  Courts have historically given the executive branch broad leeway to decide how to enforce deportation laws for the estimated 11 million immigrants living and working in the country without legal status.  The administration is expected to present the plan as a temporary shift in the government’s policy for enforcing deportation — which is widely seen as within the president’s authority — as opposed to a change in immigration law or a path to citizenship.

The reporter, David Savage, quotes UCLA law professor Hiroshi Motomura saying, “He cannot change the rules for granting permanent resident status or putting noncitizens on a path to citizenship…But he has the legal authority to set priorities for enforcement.”  And after recapping the executive action of George H.W. Bush, the article quotes law professor Stephen Legomsky of Washington University in St. Louis saying, “That is a strikingly close parallel to what President Obama is considering.”

Analysis from Greg Sargent of the Washington Post, titled “Getting back to basics in the raging debate over deportations,” provides a valuable recap of relevant facts about immigration law and policy that are critical to understand about executive action, its scope, and the corresponding legal authority.   Writes Sargent:

Just because this feels like something new and strange doesn’t make it illegal or even improper.  There are some basic facts about our current immigration system and about the true nature of Obama’s proposal and the arguments for it that should be reckoned with in making such pronouncements,” before providing a cogent recap of those key points…

The bottom line of all this is that the exercise of prosecutorial discretion is not incompatible with ‘faithful execution of the law.’  Indeed, enforcement resource constraints require prosecutorial discretion to be a necessary component of ‘faithful execution of the law.’  Is it possible that the exercise of discretion could cross the line into violating faithful execution?  Yes, but it is on critics to demonstrate why the proposed exercise of discretion actually would do that, provided that the deportation machinery continues to expend the same resources on removing people as it did before.

According to Frank Sharry, Executive Director of America’s Voice:

If the legal case for the President’s executive action is so clear, why are Republicans claiming that it is unconstitutional?  Because they want to hide behind a process argument rather than reveal two disturbing truths: 1) they don’t want to engage in a policy argument because they have no workable alternative, and ‘self-deportation’ didn’t work out so well for Mitt Romney; and 2) they are trying to hide the fact that, for the most part, the GOP opposes comprehensive immigration reform and doesn’t think much of immigrants.  It’s time for Republicans to come clean: why do they object to giving hardworking immigrant families a chance to live in freedom and with dignity?  What is so appalling about that?