Obama's Possible Immigration Action: Would It Be Legal?

Obama's Possible Immigration Action: Would It Be Legal?

By Michael Cipriano - August 1, 2014

Even as House Republicans prepare to file a lawsuit over what they call President Obama’s abuse of executive authority, White House officials have let it be known that Obama is considering unilaterally issuing work permits to millions of undocumented immigrants as a way of shielding them from deportation.

Aside from any political fallout from such a move, one question that has been raised concerns whether a president actually has such authority.

The most prominent school of thought, legal experts say, is that the measure being floated would fall within a president’s purview. Congress passes the laws, yes (and right now it’s considering the president’s request for $3.7 billion to deal with the flood of juveniles illegally crossing the southern border), but the executive branch must implement them, and legal precedent gives the administration wide latitude regarding the deportation of immigrants.

It is the legal doctrine known as prosecutorial discretion that gives law enforcement broad authority to decide how and whether to enforce federal statutes. Discretion may be exercised for a multitude of reasons, including a lack of evidence, the caseload of a court, or the need to focus on more important cases.

Kermit Roosevelt, a professor of constitutional law at Penn State’s Dickinson School of Law, said the kind of action being contemplated at the White House would be an “aggressive” -- but permissible -- use of prosecutorial discretion. Although it can be difficult to draw a line between an appropriate exercise of such authority and the president’s constitutional duty to “faithfully execute the laws,” he said there is little anyone can do about it.

“It is very hard to make the executive enforce a law,” Roosevelt explained. “Congress really has few options. They could, maybe, enact a law that explicitly required the president to enforce some law, but of course he could veto it, and even if they overrode his veto, it’s not clear that such a law would be constitutional.”

Roosevelt contends Congress would be better off negotiating with Obama, such as by threatening to withhold funding for something he wants to do.

As for the judiciary, Roosevelt said it could force the president to enforce a law, but is usually reluctant to do so.

“They review a decision not to enforce a law only if the law itself provides meaningful standards for determining when a refusal to enforce is improper,” he said. “Otherwise, they assume that enforcement is committed to the discretion of the executive branch.”

David Martin, a former principal deputy general counsel at the Department of Homeland Security and a professor at the University of Virginia Law School, said Obama would be using “longstanding legal provisions” if he were to provide work authorization to undocumented immigrants.

Martin noted that while issuing work permits goes beyond the usual understanding of prosecutorial discretion, the selective issuance of permits in the immigration field has been an accepted practice for decades. He alluded to the Reagan administration, which issued work authorization to foreigners granted deferred action.

“This makes a certain amount of practical sense,” Martin said. “Prosecutorial discretion by an immigration official amounts to an acceptance or tolerance of continued presence, maybe for a lengthy period. Such a person usually must work to survive.”

Martin added that the wisdom or sustainability of such a step is a different question, especially if discretion is extended to millions of immigrants. However, he does not expect the anticipated Obama measure to reach such a high number.

Some conservative legal scholars question whether the president has this much leeway in the non-enforcement of laws. In a 2012 paper, former Office of Legal Counsel attorneys John Yoo and Robert Delahunty wrote that President Obama’s Deferred Action for Childhood Arrivals memorandum -- which allows for certain people who came to the United States as children and meet several guidelines to request consideration of deferred action for a period of two years -- violates the president’s constitutional duty to enforce the laws.

“The failure of an agency to perform its ordinary enforcement duties may be so unreasonable that it may be considered unconstitutional, notwithstanding limitations on its resources,” Yoo and Delahunty wrote. “The Constitution confers no express or implied power or authority not to enforce the laws.”

The former OLC attorneys added that the use of prosecutorial discretion in immigration policy “threatens to vest the Executive branch with broad domestic policy authority that the Constitution does not grant it.”

“Can a President who wants tax cuts that a recalcitrant Congress will not enact

decline to enforce the income tax laws?” they asked. “Can a President effectively repeal the environmental laws by refusing to sue polluters, or workplace and labor laws by refusing to fine violators?”

Yoo also told Politico recently that the president cannot “wipe out a deportation decision no more than he can wipe out a judgment for damages.”

Other conservative thinkers do not believe Obama would be overreaching his authority. Judge Brett Kavanaugh of the United States Court of Appeals for the D.C. Circuit wrote in an opinion last year that the president has the “clear constitutional authority” to exercise prosecutorial discretion and pardon criminals.

“Put another way, prosecutorial discretion encompasses the discretion not to enforce a law against private parties; it does not encompass the discretion not to follow a law imposing a mandate or prohibition on the Executive Branch,” Kavanaugh ruled.

He added that there are remedies to address presidential “abuses” of discretion and the power to pardon, including public disapproval, congressional “retaliation” on other matters, or ultimately impeachment in cases of extreme abuse.

Michael Cipriano

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