Originally posted on The Hill Congress Blog
With the House GOP’s refusal to take up immigration reform legislation, the debate has shifted to the extent to which President Obama can act on his own to make the immigration law work better until Congress provides a permanent solution.
Among the administrative actions rumored to be under consideration is the expansion of DACA—the deportation deferral Obama gave to qualified undocumented youth in 2012. The administration is reportedly considering expanding it to the undocumented parents of U.S. citizen children and perhaps others.
Critics have questioned the president’s authority to do so. A broad, categorical deferral of deportation, they contend, grossly exceeds the President’s executive authority amounting to “amnesty by fiat.” The Washington Post Editorial Board went so far as to warn that Congressional dysfunction “does not grant the president license to tear up the Constitution.” New York Times columnist Ross Douthat characterized it as an “extraordinary, reckless and (yes) ceasarist” abuse of executive authority, “worthy of outcry and opposition.”
Those are some pretty serious claims. Fortunately, they are not even close to correct.
Even 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.
In 2011, two years before DACA was announced, former ICE Director John Morton authorized enforcement agents to exempt a broad group of undocumented immigrants from immediate removal based on several factors—including length of time in the U.S., family ties, education, health, criminal history. The Morton Memo, which was the culmination of more than a decade of agency enforcement guidance, drew criticism from immigration hardliners as lax enforcement and from advocates for not going far enough. But no one seriously challenged the administration’s authority to issue it.
DACA, which was announced a year later, took the Morton memo a step further by applying deferred action—a specific form of prosecutorial discretion—to a distinct category of undocumented youth. It made them eligible for a temporary two year deportation reprieve and employment authorization. This, according to critics, crossed the constitutional line because unlike the Morton Memo, DACA contained all the trappings of law making, including a public announcement, employment authorization and a bureaucratic process.
That may be a useful political argument. And there is no question that DACA looks and feels different than undocumented status—it permits undocumented youth to step into the sunlight of their communities, work legally, complete school and obtain a driver’s license. But legally neither DACA (or is expansion) nor the Morton Memo, offer undocumented immigrants any vested right under existing law. They provide no new lawful immigration status and beneficiaries remain vulnerable to removal. Like any grant of administrative grace DACA can be revoked by the government with the stroke of a pen, at any time, and for any reason.
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.
Nor do use of forms and fees and a bureaucratic process evidence executive law making. Putting aside that the government uses forms and fees for a variety of discretionary benefits—including stays of removal (Form I-246), protection under the Violence Against Women Act (Form I-360), Parole (Form-I-131)—the establishment of a bureaucratic process merely promotes agency efficiency and uniform adjudication.
Those who challenge 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.
Leopold is an Ohio-based attorney and the former president of the American Immigration Lawyers Association (AILA).