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Two Key Points Regarding Immigration Executive Action

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Opposing Legislative Reform and Executive Action Perpetuates Immigration Status Quo;

Former AILA President David Leopold Explains Why Executive Action is Legal

Two new opinion pieces, in Spanish and English, further two of the key points to understand regarding potential executive action on immigration:

  1. Doing nothing, either via legislation or executive action, is the true radical option on immigration and an endorsement of the failed immigration status quo
  2. President Obama has broad legal authority to act on immigration policy

A new column from America’s Voice Senior Advisor Maribel Hastings, running in leading Spanish-language outlets, captures that Republicans are endorsing the broken immigration status quo by refusing to legislate on reform and then preemptively criticizing the president for taking executive action.  Writes Hastings:

Only in the twisted world of immigration politics do the contradictions win out: The House of Representatives won’t legislate, but they blame the president for believing he’s a king if he issues executive orders.  They denounce ‘illegality’, but with their inaction they perpetuate the status quo of real illegality where it’s impossible to know who is among us.

Authority and discretion exist and they’re legal.  If they’re not used now for partisan political considerations it’s another matter.  But the last thing Obama should care about is what the obstructionist Republican opposition says.  If they don’t like executive action, then legislate.

Former president of the American Immigration Lawyers Association (AILA), David Leopold, writes a new opinion piece in The Hill that adds to the volume of existing analysis showing that potential executive action on immigration rests on solid legal footingLeopold writes:

Even Mr. Obama’s most ardent critics must concede that his constitutional duty to faithfully execute the immigration law gives him wide latitude in its enforcement.  What’s less clear are the limits of that authority.  How far can the President go?

The reason this is not an easy call is because the line between exercising discretion over enforcement and crossing over to policy making is often blurred.  One thing that exemplifies this is determining when a case-by-case grant of discretion crosses over to a categorical grant.  Critics like to argue that case-by-case exercises of discretion are acceptable but categorical are not.

But it does not follow that this crosses that line.  As long as the administrative decision to defer the removal of a group of undocumented immigrants is legitimately aimed at more efficient use of law enforcement resources, it arguably falls well within the President’s discretion.  This includes the discretion to defer the deportation of undocumented immigrants—individually or as a group—if doing so allows the administration to focus resources on keeping the country safe.

In fact, Presidents of both parties have used categorical grants of deferred action to postpone the deportation of large groups of undocumented immigrants, including abused women, hurricane victims and refugees.

Therefore, to violate the constitution, the President’s action must be a dramatic, extraordinary departure from universally accepted exercises of executive discretion.  DACA or its expansion don’t even come close…

…Legally therefore, DACA is not much different than executive discretion contemplated by the Morton Memo, which even conservatives concede was well within the president’s authority to issue.  Like the Morton Memo DACA or its expansion is nothing more than a temporary postponement of deportation for undocumented immigrants whose removal is a low enforcement priority. This temporary reprieve from removal falls far short of amnesty which, presumably, would offer qualified undocumented immigrants a new set of rights and obligations, including lawful immigration status and a pathway to citizenship coupled with due process rights, including the right to defend against denial or revocation.

Critics like to say that the availability of employment authorization or the use of forms and fees pushes the DACA process or its expansion over the blurry line from lawful discretion to executive lawlessness. But they conveniently forget (or are not aware) that the president’s authority to authorize employment of immigrants is long-standing and already well-established in the law.  The regulation that grants work authorization to immigrants granted deferred action predates DACA and applies to many other categories of people granted deferred action, such as abused women, hurricane victims, and refugees.  The president’s authority to grant work status long precedes DACA, and while it does apply to DACA and would apply to its expansion, it is not an outgrowth of either…

…Those who challenge President Obama’s authority to act on his own to limit deportations fail to make the case that DACA or its expansion is such a dramatic departure from the Morton Memo (or other universally accepted forms of prosecutorial discretion) that it constitutes the naked power grab they claim.  It’s not enough that it looks different, it must be different; significantly different from what is accepted as lawful discretion.  But it isn’t significantly different.

In other words, it’s legal.