Monday, November 24, 2014

Refocusing the Debate on Policy, Not Legal Authority

Guest Blogger

Alina Das

On November 20, 2014, President Obama announced his long-awaited plan for executive action on immigration reform. As someone who represents immigrants who face deportation under the current system, I appreciated the President’s observations regarding the “hypocrisy” and “cruelty” of our broken immigration laws. The Supreme Court has aptly equated deportation to “the loss of all that makes life worth living,” yet we have deported millions of people (well over 2 million during the Obama administration alone) without providing them with a right to counsel or a meaningful opportunity to present the facts of their case to a judge. The President’s plan for executive action does not solve these problems, but it does include an effort to provide some immigrants with a temporary reprieve from deportation, to prevent family separation while Congress debates longer-term approaches to comprehensive immigration reform.

Despite the political controversy over the President’s actions, the legal basis for President Obama’s plan is well established. As explained in a memorandum from the Office of Legal Counsel, Congress has delegated broad authority over enforcement priorities to the Executive Branch through the Immigration and Nationality Act. This authority encompasses acts of prosecutorial discretion, which the Supreme Court has recognized as recently as in 2012 to be a “principal feature of the immigration system.” A longstanding application of such prosecutorial discretion in the immigration context is “deferred action,” which provides a temporary reprieve from deportation and the ability to apply for work authorization, subject to revocation.  Deferred action and similar forms of prosecutorial discretion have long been explicitly referenced in federal statutes like the Immigration and Nationality Act, the USA PATRIOT ACT, and the REAL ID Act; in federal regulations; and in decades-old policy memoranda. Indeed, every president as far back as President Eisenhower has used some form of prosecutorial discretion to protect groups of individuals from deportation or exclusion from the country.

In light of the Executive Branch’s broad authority to engage in prosecutorial discretion, the scope of President Obama’s plan to expand deferred action is rather modest. As several commentators have noted, President Obama’s plan is not so different from President Georgie H. W. Bush’s Family Fairness program in 1990—executive action that, at the time, prevented the deportations of over 40 percent of the undocumented population. President Obama’s new plan similarly attempts to reach approximately 4-5 million of the 11-12 million undocumented immigrants living in this country.

Nonetheless, critics of President Obama’s plan have argued that he has engaged in an unconstitutional “power grab.” While most immigration law scholars maintain that such assertions are unfounded, a few have argued that the President may have arguably violated his constitutional duty to “faithfully execute” the laws. Such arguments are generally premised on the idea that the President is “legalizing” immigrants contrary to the dictates of Congress.  However, the President has not announced a policy of legalization. The decision whether or not to deport an individual—a penalty—is not the equivalent of a decision whether or not to confer legal status such as permanent residency (either through affirmative grant or waiver) or citizenship. The Supreme Court has explicitly observed that nonenforcement decisions are a “special province of the Executive Branch.” And this is for good reason, given the potentially harsh, disproportionate, and counterproductive consequences of enforcement in some cases and the limited resources that the President has been given to administer the law in various contexts.

Indeed, in this respect, the memorandum from the Office of Legal Counsel may have been too conservative in its estimation of the President’s authority in the immigration context. The memorandum concluded that the President could not use his authority to extend deferred action to the parents of previous deferred action recipients. However, the family unity concerns expressed in the Immigration and Nationality Act are not exclusively limited to those whose family members already have lawful status in the United States. The Immigration and Nationality Act also includes humanitarian-based waivers and other forms of discretion that permit considerations of family ties without regard as to whether those family members are U.S. citizens or lawful permanent residents. Family unity is a value that exists separate and apart from status, and its promotion through broad deferred action is consistent with the legal authority delegated to the President.

The rest of the debate appears to be a question of policy disagreements, rather than legal authority. These disagreements do not all go in one direction. For example, the President emphasized his efforts to use his executive authority to focus increased enforcement at the border and against individuals who fall under an amorphous “criminal” label—policies that will no doubt lead to many of the same problems that we have previously seen involving family separation, deportation without due process, and abuses at the border. I do not agree with these aspects of the President’s planned use of executive authority. When we divide up immigrant communities into the “deserving” and “undeserving,” everyone suffers. This is not only because the “underserving” share so many characteristics of the “deserving”—including having family ties and significant contributions to our country—this is also because the very existence of an “undeserving” category serves as a justification for the programs of mass deportation and detention that have proven to be so deeply problematic for our country as a whole. The only way to ensure a fair and just system is to provide everyone with a meaningful opportunity to be heard on the facts of his or her case—without exception.

That being said, these are issues for public debate. The public would be far better served by those who disagree with President Obama’s policies if the critics addressed these concerns on their own merits, rather than cloaking their disagreements in a strained legal challenge to the President’s authority to exercise his prosecutorial discretion.

Alina Das is Associate Professor of Clinical Law, NYU Law School. You can reach her by e-mail at DasA at

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