On November 20, 2014, President Obama announced broad changes to the immigration system via executive action. The most significant of these changes will extend protection from deportation to about 4.3 million more unauthorized immigrants – roughly 4 million parents of US citizens or green card holders will be covered under a new “deferred action” program, and the 2012 Deferred Action for Childhood Arrivals (DACA) program eligibility will be extended to 270,000 more immigrants.
The political right immediately launched accusations of executive overreach. Indeed, even before the announcement was made by the White House, word spread on Capitol Hill that House Speaker John Boehner was considering suing President Obama over the impending executive action, and conservative columnist Charles Krauthammer said the action may be “an impeachable offense.”
The debate over President Obama’s immigration action reflects an important issue for our democracy – specifically, it concerns the respective roles that Congress and the executive branch play in the nation’s constitutional system of government. But in reality, claims of executive overreach are often simply a parlor game that the opposing party of any president plays. Even before the executive order was seen publicly, many were convinced as to the impending action’s legality or illegality, depending entirely on one’s pre-existing political views on immigration reform. In place of such certainty, it’s important to discuss what we know about immigration and executive power.
In general, the Executive has three broad types of discretionary power as to immigration: (1) express delegations of discretionary authority; (2) prosecutorial/enforcement discretion; and (3) discretion in the interpretation and application of statutes.
First, the Executive is given some degree of discretion to determine whether and when aliens may be eligible for particular immigration benefits or relief, including adjustment to legal immigration status or authorization to work in the United States. Article I of the Constitution grants the power to legislate to Congress, and Congress has exercised this power as to immigration, in part, by enacting the Immigration and Nationality Act (INA). At its core, the INA is a comprehensive set of rules governing the admission of foreign nationals into the United States and the conditions of such aliens’ continued presence in the country. In some cases, Congress has provided clear statutory guidance for when such authority may be exercised. But in the majority of instances, there are few, if any, express limits on the authority granted to the Executive.
One of the most significant examples of the Executive’s discretionary authority involves the application of the grounds of inadmissibility listed in the INA. In general, an alien who has not been lawfully admitted into the United States is subject to exclusion or removal from the country if the alien is inadmissible under Section 212 of the INA. Some grounds of inadmissibility constitute permanent bars to an alien’s admission into the United States; others may bar an alien from being admitted into the United States for a certain period of time. But in many cases, the INA provides immigration authorities with the ability to waive application of these grounds in certain situations, and thereby enable otherwise-excludable aliens to be lawfully admitted in the United States.
For example, even when an alien is found to have procured or sought to procure an immigration benefit through fraud or misrepresentation (a ground of inadmissibility under Section 212(i)), that alien can be admitted on immigrant visas and/or granted adjustment to Lawful Permanent Resident (LPR) status when it is determined that the denial of the alien’s lawful admission would result in “extreme hardship” to a U.S. citizen or LPR who is the spouse or parent of the alien.
Second, the Executive possesses some degree of independent authority in assessing when, against whom, how, and even whether to prosecute apparent violations of federal law. This authority is generally referred to as “prosecutorial discretion” or “enforcement discretion,” and typically refers to the determination by immigration officials: whether to commence removal proceedings and the nature of the particular charges; whether to cancel a Notice to Appear (NTA) or other charging document before jurisdiction vests with an immigration judge; and whether to appeal an immigration judge’s decision or order. This authority is subject to two notable limits: (1) the Executive cannot consciously decide to abdicate its enforcement responsibilities (it’s important to note, however, that “[r]eal or perceived inadequate enforcement . . . does not constitute a reviewable abdication of duty”); and (2) statutes using “shall” might invariably require agency action.
An example of the Executive using its enforcement discretion involves the granting of deferred action to removable aliens. Grants of deferred action date back to at least the 1970s, but the best-known example of deferred action is the Obama Administration’s DACA initiative. Under DACA, certain unlawfully present aliens who were brought to the United States as children may be granted “deferred action” (a type of relief from removal) and work authorization.
The third type of discretion that the executive branch may exercise involves the interpretation and application of statutes. This authority is not derived from immigration law itself, but constructs of statutory interpretation employed by the judiciary. In general, the Executive is constrained if Congress has directly spoken to the precise question at issue. But if Congress (through the INA) is silent or ambiguous with respect to a specific issue, the Executive is afforded a certain amount of deference so long as the executive branch’s interpretation is a “permissible” and “reasonable” interpretation of the underlying statute. In some instances, the amount of deference can be quite broad, and in others, less so, depending upon the facts and circumstances of the case (e.g., whether the interpretation is a “formal” interpretation or a case-by-case adjudication).
Before passing judgment on the legality of the president’s forthcoming executive order, it’s important to wait until it is actually issued. Only upon examination of the executive order and the legal justification – which the White House should issue simultaneously with the order – will it be clear whether the Obama Administration is asserting concrete legal authority, or whether it is crossing boundaries that the president cannot cross.
That being said, from what we do know of President Obama’s plans, it appears entirely consistent with the precedent that was established by previous presidents and, more importantly, a proper use of prosecutorial discretion. Even the conservative legal experts of the Federalist Society agree that President Obama has the authority to take the kind of actions he described.
“I agree this can make us very uncomfortable,” said Christopher Schroeder, the Charles S. Murphy Professor of Law and Public Policy Studies at Duke Law School. “I just don’t see the argument for unconstitutionality at this juncture.”
It is important to understand how we got here, and precisely why President Obama announced the actions his Administration would take. In March 2013, the Republican National Committee released an autopsy of the 2012 presidential election, and admonished Republican lawmakers to “embrace and champion comprehensive immigration reform.” Since then, Republicans have refused to touch comprehensive immigration reform, instead choosing to stoke anti-immigrant sentiment and punish members of their own party (see: Eric Cantor) who disagree.
In the absence of Republican action in the House, in March 2014 the Obama Administration started a review of deportation policy to see if it could be made more humane. That effort, however, was delayed to give Republicans one last chance to pass immigration reform in Congress. Republicans didn’t take that chance, instead becoming more intractable on the issue. President Obama restarted the review in May 2014, and promised to announce major executive actions after the midterm elections. With the November 20 announcement, the administration kept that promise.
No reasonable person can say that immigration reform’s death is anyone’s fault but Republicans and their failure to get their act together. Instead of looking for a policy solution to the estimated 11 million undocumented immigrants, Republicans are seemingly only looking for a good reason to oppose action by the president. The best action by the GOP on immigration would be a legislative proposal in Congress. But that’s unlikely to happen anytime soon. And until it does, the President should continue taking executive actions to address the problem, action that, it should be clear, are fully within his constitutional and administrative powers.