President Obama Issued a Directive, Not an “Executive Order” or “New Law”

Written by on June 19, 2012 in Enforcement, Legislation with 6 Comments

Immigration hardliners were predictably quick to criticize President Obama’s recent announcement that DHS will use discretion to halt the deportations of eligible immigrant youth. They wasted no time hurling some base-stirring claims—“administrative amnesty,” “end-runs around Congress,” “executive fiat.” However, while folks are free to criticize the President, they should at least strive for accuracy. The President did not create a new law, sign an executive order or grant anyone citizenship or amnesty, he merely directed DHS to exercise discretion to grant deferred action to qualified immigrant youth—an action that is well within his power as President.

Putting aside ridiculous critiques from fringe groups (think “dictator, tyranny, treason”), others have mischaracterized Obama’s administration’s discretion directive as an “executive order” or “new law.” For example, in a recent interview, Florida Senator Marco Rubio said:

“My biggest fear is that by doing it in this way, by doing it by executive order, by ignoring the Congress, it’s going to make it very hard to get something done that is permanent and that’s really where the solution lies on this issue.”

This is not the case. As previously reported, deferred action is one of several forms of discretion that allows an individual to remain temporarily in the United States. It does not confer any kind of permanent residence, nor is it an amnesty. Under DHS’s June 15 memo, deferred action would be granted to eligible immigrant youth for two year increments, include work authorization, and would be renewable.

In fact, the use of discretion—which the Supreme Court has made clear agencies can use—in the immigration context is exercised across the board—by agencies, investigators, police, attorneys and judges. According to immigration experts, the use of discretion is “not contrary to current law, but rather a matter of the extension and application of current law to contemporary national needs, values and priorities.”

Other common forms of discretionary protection from removal include:

  • Deferred Enforced Departure, exercised by President George H.W. Bush for Chinese nationals after Tiananmen Square
  • Extended Voluntary Departure, extended to citizens of Poland Cuba, the Czechoslovakia, Chile, China, Iran, Nicaragua, and Vietnam (to name a few) in response to various periods of political upheaval and natural disasters
  • Humanitarian Parole, granted to someone enter the U.S. temporarily due to a compelling emergency, like a woman who was separated from her husband and children because of paperwork lost by an embassy.

While restrictionists love to attack any administrative action as the executive branch over-reaching, the more likely reason is that criticizing the President allows them to avoid criticizing DREAM Act students. It’s much easier to say that the President did it the wrong way than to actually engage in the reasons, such as stonewalling on the DREAM Act in Congress, that led him to his decision. In this case, critics want to get the facts wrong to avoid the policy debate.

Photo by Intel Photos.

Tags: , , , , , ,


If you enjoyed this article, subscribe now to receive more just like it.

Subscribe via RSS Feed
  • Sarah Morrigan

    Wait… Does that mean ICE can totally ignore this “memo” since it has no enforceable teeth to it? That sounds like yet another one of those empty promises for Obama.

  • Jonna

    Executive orders, directives and memos issued by the president have been declared as law in 2009. Doesn’t matter what you call it, it has the force of law unless Congress or the Supreme Court over turn it.

  • Andrew Breavington

    Jonna, I found your comment interesting. Can you please provide support or a link for your statement that directives and memos issued by the president have been declared as law in 2009. Thanks!

  • TexasRedbud

    Nice to know Obama did not break the law. How about an article discussing how this directive has effective opened our borders to anyone who has been properly coached to answer a few simple questions? Borders? we don’t need no stinking borders.

  • The American Hour

    He did break the law. For all you illiterate communists, the 10th amendment says that the only things the federal government including the President can do are those items specified in the Constitution. Nothing else. Where exactly does it say that the president can issue directives? Let alone not based on any existing law?
    The argument of past precedent does not replace the Constitution.
    But these are the arguments communists make.

  • Survivor

    “They wasted no time hurling some base-stirring claims—“administrative amnesty,” “end-runs around Congress,” “executive fiat.” However, while folks are free to criticize the President, they should at least strive for accuracy.”

    If you want accuracy, please talk to “we the people”.

    How about a discussion as to his intent? Motive? He doesn’t give a damn about the ‘people’ he refers to, he is securing future DEM votes. The timing of his actions correlate directly to the loss of control in the House and Senate. He is simply throwing a toddler’s temper tantrum. And, as with every other action he has taken, he has damaged this country in the process.

    It is time: “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

    We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–

    That to secure these rights, Governments (and/or SELF APPOINTED EMPERORS) are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.–Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

    He has refused his Assent to Laws, the most wholesome and necessary for the public good.
    He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
    He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
    He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.
    He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
    He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
    He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
    He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.
    He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
    He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.
    He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
    He has affected to render the Military independent of and superior to the Civil power.
    He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
    For Quartering large bodies of armed troops among us:
    For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:
    For cutting off our Trade with all parts of the world:
    For imposing Taxes on us without our Consent:
    For depriving us in many cases, of the benefits of Trial by Jury:
    For transporting us beyond Seas to be tried for pretended offences
    For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:
    For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:
    For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
    He has abdicated Government here, by declaring us out of his Protection and waging War against us.
    He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.
    He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
    He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
    He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

    In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

    Nor have We been wanting in attentions to our Brittish brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

    We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.