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Sargent, Beutler: Executive Action on Immigration Would Be An Exercise in Existing Powers

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The legal defense for President Obama taking executive action on immigration continues to grow.  Yesterday, the American Bridge PAC released a memo of executive orders that previous presidents — Republicans included — have announced on immigration.  Today, two key pieces further illustrate that Obama has the power to use existing powers to protect certain immigrants from deportation.

First, Greg Sargent at the Washington Post starts at the Morton Memo, reestablishes DACA as immigration law implementation, and extends that argument to “DACA 2.0”.  A short excerpt of his piece is below, read the full-length article here.

The starting point, I think, is this question: Does Obama’s deferred deportation program — and its expected expansion, which could impact millions — constitute a dramatic and substantial departure from the legitimate exercise of prosecutorial discretion that virtually everyone accepts as well within the president’s authority?

If the answer is No — as I hope to show — then the (non-rhetorical) question becomes: If the legitimate exercise of prosecutorial discretion over our deportation machinery does not amount to an intolerable affront to political norms, then why shouldn’t we conclude the same about deferred deportation programs?…

As Republican immigration law expert Margaret Stock explains, DACA and/or DACA 2.0 can also be understood as efforts to improve the implementation — for the good of law enforcement and the country — of enforcement priorities that most people already agree represent legitimate exercises of the executive’s discretion…

Why should we only consider one set of consequences (DACA 2.0′s alleged impact on political norms)? Shouldn’t those who acknowledge presidential authority also weigh another set of consequences, i.e, of failing to exercise it and maintain the status quo (lack of uniform policy; more deportations of longtime residents we already agree can be deprioritized; failure to extend them work authorization, which arguably has economic benefits; and failure to bring them out into the light, which helps law enforcement)?

If people do accept such prosecutorial discretion as legitimate, why do efforts to improve its implementation constitute an unacceptable affront to political norms, given that they confer a shift only in temporary work status — which Congress has authorized the executive to provide — and fall well short of new immigration status, let alone a suspension of enforcement of the law?

Meanwhile, Brian Beutler at Salon reminds us about a 1999 letter that House Republicans — including former Chair of the Judiciary Committee Lamar Smith — wrote to then-Attorney General Janet Reno asking her to intervene on behalf of those facing unintended deportation.  Smith and others are on the record establishing the executive right to prosecutorial discretion — and moreover, asking for it.  As Beutler points out, even commentators opposed to Obama taking action admit that he has a right to.  It’s just the number of people affected that makes them queasy.  But the fact that pundits like Ross Douthat are queasy is not a constitutional obstacle.  Read an excerpt of the Beutler piece below or the full piece here.

The principle of prosecutorial discretion is well established. Indeed, INS General and Regional Counsel have taken the position, apparently well-grounded in case law, that INS has prosecutorial discretion in the initiation or termination of removal proceedings…. True hardship cases call for the exercise of such discretion, and over the past year many Members of Congress have urged the INS to develop guidelines for the use of its prosecutorial discretion. Optimally, removal proceedings should be initiated or terminated only upon specific instructions from authorized INS officials, issued in accordance with agency guidelines. The undersigned Members of Congress believe that just as the Justice Department’s United States Attorneys rely on detailed guidelines governing the exercise of their prosecutorial discretion, INS District Directors also require written guidelines, both to legitimate in their eyes the exercise of discretion and to ensure that their decisions to initiate or terminate removal proceedings are not made in an inconsistent manner.

Conservatives will note that Smith and his co-signers were technically describing internal guidance, analogous to the “Morton Memos,” which preceded DACA. But the main distinction between the two is that DACA made the internal guidance public, allowing DREAMers to come forward. Clearly Smith’s goal wasn’t to seek deportation protection for adopted immigrants and then never tell them about it. It was to get them off the hook, and provide certainty to them and others in their position…

Obviously the debate today is over using discretion on a much larger scale. And one could argue that the norm being tested isn’t the propriety of using discretion to create policy when Congress won’t act per se, but of using it so broadly. But then you’ve trespassed into substance. If a program for 50,000 is normal, why not 500,000? Or 5,000,000. Where along the continuum do we start to stretch the boundaries, and based on what criteria?