Why the President Has Authority to Act on Deportations

Written by on August 11, 2014 in Enforcement with 10 Comments

4014411081_f1d3c8db2b_oThe Washington Post published an editorial last week that missed the mark on whether the President has the authority to limit deportations of undocumented immigrants, concluding President Obama would be “tearing up the Constitution” by doing so. The New York Times editorial board followed up Sunday with their more accurate assessment that it “would be a rational and entirely lawful exercise of discretion” for Obama to use his authority focus on high-priority immigration targets.

The truth is, the President has the responsibility, as well as the authority, to regulate the enforcement of immigration law, a task that has become far more difficult in light of Congress’ failure to pass immigration reform. Given this failure, the president must use the executive authority available to him to create a more fair and transparent process for determining who should be deported and who should be allowed to remain in the United States temporarily.

Hiroshi Motomura, a legal scholar and professor at the UCLA School of Law school, has described in detail the President’s legal authority to exercise this power, noting in a new book that the immigration scheme in the United States has always been one of “selective enforcement,” in which we acknowledge, either directly or indirectly, that not everyone in the country unlawfully will be deported. In recent years, the Obama administration has moved from the informal acknowledgment of that truth to a more targeted process, moving from merely articulating enforcement priorities to actually designating factors that should, as a general rule, preclude deportation. Critical to this process are two points—both of which ensure that the Constitution remains undamaged.

First, designating a more regular process—such as the Deferred Action for Childhood Arrivals program for undocumented youth who arrived in the U.S. as children—sets a broad parameter of eligibility, but it does not dictate that an individual will necessarily be allowed to remain in the U.S. Case-by-case adjudications require individual exercises of prosecutorial discretion. This individualized determination ensures that the government continues to act within its inherent role of enforcer of the laws, a role that by its nature also includes the discretion to decline to prosecute in individual cases. DACA, and any potential expansion of it, merely ensure that this individualized assessment is conducted in a formal and more accountable manner.

Second, the president cannot grant permanent legal status. That is the role of Congress. No one who currently has DACA will become a permanent resident or U.S. citizen based on that temporary reprieve from deportation. Instead, DACA provides young people the breathing room to pursue education, work, and have a more predictable life, albeit within two-year increments. It also provides Congress the breathing room, if it will take it, to structure a legalization program that would provide closure to the endless debate over undocumented immigrants in this country.

As long as the president is transparent and rational in the criteria established, and as long as the underlying decision is individualized, a broader program has the potential to refocus our energies on genuine threats to our nation, expand the economic and social contributions of individuals who are already embedded in our communities, and create the space for more legislative action.

There is a difference between authority and policy. Whether the president has the authority to exercise discretion in this way is undisputed. Whether it is good policy is the real debate. There, the evidence is clear. In the absence of Congressional action, creating a more predictable and rational approach to regulating undocumented immigration is the best option available.

Photo by Stefaan.

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  • Bob

    This will piss off Americans.. Go ahead. make it harder on Obama. Hope your call is broadcast.

    • Melissa

      Some Americans will be “pissed off” but they are a minority compared to the Americans (US citizens) who agree something must be done. And in the face of congressional inaction, the president CAN and SHOULD act within the parameters of the law. It is largely the House Republican’s failure to act that has left the president with no other option but to act, so they have no one else to blame but themselves.

    • prado4587

      Odds are that North Americans, Central Americans, or South Americans will be mad at whatever Obama or any U.S. president does.

  • susanylaganfaller

    being the authority do what is good for the illegals they are also human being we are not animal

    • Abelethio Anthony Moreira

      You are totally right! I as a Latino American have the dream on being someone in life and fight for our beautiful nation. Not all Latino’s are the same. My goals in life are joining the Navy and give back to the country that gave my family and me a home with so many blessings.

      • Aidee

        Unfortunately the majority of Latinos don’t care much about the principles this nation stands for. They want to impose their bad habits and become lazy about getting an education to better themselves, they think that just have to go to work on whatever, after that get drunk, make babys and party is a good lifestyle.
        While Chinese, Hindus, Middle East people, struggle more to come to this Country they immediately search the way to better themselves and it shows, they are the owners of most small businesses.

      • Heather

        Check out this link about joining the military even when you don’t have a “green card.” http://www.isvmag.com/05/05/mavni-program-direct-u-s-citizenship-without-green-card/5366

  • susanylaganfaller

    if not given the chance to be american citizen give them the chance to ha ve abetter life each and every one of us wants our dreams to be real not just a dream,life is beautiful but why is it that some are against are they normal people instead of helping depriving them. maybe their families didnt know the hardships or they dont even bother to tell them how their ancestors struggle for liberty the rights to be americans in the land of opportunity. they are just settlers the indians were the ones theylet them occupy the mountains and the white occupied the lowlands

  • Aidee

    If the people can prove that they really respect this Country they could earn some sort of temporary residency. They should enroll in a class of English as a second language, then better themselves and learn additional skills. The Indians Story is getting really old. The American settlers made this Country the greatest in the entire world. It took a lot of work to build it the way it is right now. Why would anybody get all the benefits when they do not even care for the English language?.

    • Abelethio Anthony Moreira

      I completely agree on your response comment on mine. Unfortunately that is the case for many Latinos, that they do not take for grant that they are in such an amazing country, but definitely are a handful of Latinos that do care about their future and i include myself in the handful. I pray that soon we will have a relief on immigration so my family: sister, cousins, uncles, and step-father, will be able to go to college and do something beneficial for our nation. Proud to say i am a fluent English speaker, with an American accent and dream. Proud to say i am a proud American who is living life at it’s fullest and never giving up to achieve my goals.