Earlier today, we highlighted analysisfrom a range of legal experts and observers who have stated that President Obama has broad authority to act on immigration.
Subsequently, Greg Sargent of the Washington Post’s “The Plum Line,” published a post entitled “How far can Obama go on deportations?” It features in-depth interviews with John Sandweg, who was acting general counsel at the Department of Homeland Security during the announcement and launch of DACA, and David Leopold, past president of the American Immigration Lawyers Association (AILA).
Among the key points made by Sandweg during his discussion with Sargent:
The president is doing what every single law enforcement agency across the country does: Put in place rational priorities to ensure that limited resources are focused on the populations that pose the greatest threat to public safety and border security. Every single law enforcement agency in America struggles with the fact that their resources are not conditioned to cover every single violation of the law. What prosecutors and police chiefs have done for years is implement enforcement priorities. That’s what the president has done.
DACA is a law enforcement tool that is the logical next step from the [internal to DHS] Morton Memo. DACA provides additional clarity and guidance to the field. But it doesn’t guarantee a class of individuals anything. It does not provide or confer any rights upon individuals. What it does is provide guidance that officers and agents are to consider when determining how to exercise discretion. It requires an individual case by case analysis of whether those factors apply in any particular case. It does not confer upon any class any rights.
There are only so many people ICE can remove from the United States. The question is, how do you choose which of the 11.5 million you are going to remove? If you begin by eliminating DACA and eliminating prosecutorial discretion policies, what you’d be doing is increasing the likelihood that the people removed are those who pose no threat to public safety. You’d be making it more likely that convicted criminals and people who just crossed the border are going to remain in this country. You’d be making the country less safe. If we eliminated all priorities, and treat them all equally, you are going to make the country less safe, and make the border less secure.
Leopold also provides important background and context, noting:
While it is true that DACA applies to categories, it does not cross over into anything even remotely equivalent to granting any category any kind of new protection under rewritten law, because it does not create any new right or legal immigration status. The government retains its authority to unilaterally revoke DACA, either categorically or individually, at any time and for any reason, subjecting an undocumented immigrant to removal.
It is true that there is no bright line test delineating the parameters of the President’s authority to grant Deferred Action. Perhaps one way to think about this is to ask whether the exercise of prosecutorial discretion in question — whether categorical or not — can reasonably be seen as legitimate prioritization of limited law enforcement resources. If so, it arguably falls well within President’s legal authority. This would include individual as well as categorical grants of deferred action, such as DACA. As the Supreme Court recognized in Arizona vs. U.S., some ‘discretionary decisions involve policy choices.’