The idea that the immigration plan just announced by President Obama is a lawless power grab is absurd. As the Justice Department legal analysis that was just released amply demonstrates, much of the advance criticism of the president’s action has been uninformed and unwarranted. The opinion is well-reasoned and at times even conservative. The president is not acting unilaterally, but pursuant to his statutory authority. Wide discretion over deportation priorities has long been conferred on the executive branch by Congress, and it is being exercised in this case consistent with policies such as family unification that have been endorsed by Congress.
Even though the action is breathtaking in scope, there is nothing legally remarkable about what the administration is doing, or the legal analysis supporting it. The announced “deferred action” provides temporary administrative relief from deportation for aliens who are the parents of citizens, or the parents of lawful permanent residents. “Deferred action” is an exercise of discretion in which officials may temporarily defer the removal of an alien. The grant of deferred action in this case will remain in place for three years, is subject to renewal, and can be terminated at any time at the discretion of the Department of Homeland Security. As Eric Posner, who served in the Office of Legal Counsel under the first President Bush, notes, the president “is just doing what countless Congresses have wanted him to do”—setting priorities for deportation enforcement.
Let’s be clear about what the administration has not done in this opinion. No one has been granted “amnesty,” either literally or functionally. And no precedent has been set for this or any future president to act unilaterally in disregard of acts of Congress. On the contrary, the legal opinion rejects a second proposed exercise of discretion—deferring deportation of the parents of “Dreamers”—that Justice concluded cannot be said to carry out priorities established by Congress.
The fundamental fact is this: There are 11.3 million people in the United States who, for one reason or another, are deportable. The largest number that can be deported in any year under the resources provided by Congress is somewhere around 400,000. Congress has recognized this and in 6 U.S.C. 202 (5) it has directed the secretary of homeland security to establish “national immigration enforcement policies and priorities.” In the action announced tonight, the secretary has done just that, and the president has approved.
Under this order, Homeland Security will give priority to deporting those who are threats to national security, border security, or public safety, including those who have committed serious misdemeanors or abused the visa process. Obviously, no one will criticize that sensible setting of priorities. What has provoked vociferous criticism is the affirmative decision to announce a deferral of deportation for parents of those who are in the country lawfully. That is a lot of folks: Probably about 4 million people will be eligible to apply.
Concededly, such a sweeping action is not usually thought of as a mere instance of individualized “prosecutorial discretion.” But the executive branch is entitled to act on the basis of large policy considerations, and not simply on the basis of case-by-case determinations. And in many instances that discretion has been exercised in broad strokes. The number of people who will benefit from deferred immigration action is dwarfed by the tens of millions who benefit from the discretion exercised by a series of administration decisions not to investigate and prosecute most violations of federal laws prohibiting possession of marijuana.
In cases such as Heckler v. Chaney (1985), the Supreme Court has repeatedly emphasized that where Congress has not provided guidelines for executive enforcement, the determination of enforcement priorities is within the “special province of the Executive.” This is especially clear in the area of immigration. As the court recently noted in Arizona v. United States (2012), some of the discretionary deportation decisions the executive makes are appropriately based on general policy considerations, such as concerns implicating foreign affairs.*
In approving the lawfulness of part of the proposed deferred action, the opinion released Thursday night from the Justice Department’s Office of Legal Counsel, or OLC, is careful to reaffirm that officials may not abdicate their statutory responsibilities. In particular, the opinion states that Congress’s endorsement of certain deferred-action programs does not mean that such programs can be extended to any class of aliens. The proposals were carefully vetted to ensure that the expansion of deferred action to the new categories was consonant with congressional policy.
Perhaps what has understandably concerned critics most is not merely the deferral of deportation proceedings but the affirmative step of permitting those whose deportation is deferred to then apply for authorization to work while they remain in the United States. But here the president is not acting unilaterally nor even on the basis of an inferred discretion. He is, rather, acting on the basis of specific statutory authority from the Immigration and Nationality Act. Under that authority and by pre-existing regulation, the secretary of homeland security is authorized to grant authorization to work to those who are in the “deferred action” category. If Congress does not want those whose deportation is to be deferred to be able to work lawfully, it can certainly repeal this regulatory authority. But it has not done so, and for good reason: Those who are able to demonstrate economic necessity to work will undergo background checks and pay local, state, and federal taxes, something a lot of Americans support.
The lawyers here were cautious. They gave approval for deferred actions for parents of citizens and lawful permanent residents, finding that Congress had demonstrated support for permitting people who are lawfully in America to be united with their parents, spouses, and children. They did not, however, believe that they could approve a similar program for parents of those who are in the United States under the deferred action for childhood arrivals, or DACA, program. Because the Dreamers remain in the country based on discretion, not on the basis of a legal entitlement, OLC reasoned that without a family member with lawful status in the United States, there was not the same grounding in congressional policy to justify classwide relief.
Ironically, if anything could be criticized in the administration’s legal opinion, it would be that the reasoning for not permitting deferred action for Dreamer parents is somewhat thin. At the end of the day, the legal concern seems to be that approving deferral in the case of Dreamer parents would suggest the absence of a limiting principle: If relatives of children who are not themselves lawful residents are permitted temporarily to remain, what about relatives of relatives of relatives? The program approved by Justice is more soundly grounded in a family connection with a child who is a citizen or a lawful permanent resident.
The president is not acting contrary to any statutory mandate. Nothing in the president’s action sets a precedent for unbridled executive action (as Marty Lederman sets out in a post for Balkinization). To note one example, although a president can cut back on enforcement of tax laws, no president can relieve any one American of a statutory obligation to pay taxes. The next president can come collecting—and interest and penalties will be accruing until he or she does.
In this case, the full amount of funds for deportation will continue to be spent in accord with enforcement priorities set by Homeland Security that are fully within the discretion conferred by acts of Congress. The scope of the relief is comparable to that granted without significant controversy by the first President Bush to 1.5 million undocumented aliens. In light of how legally conservative the opinion really is, it is a wonder that this issue has become the subject of such heated, occasionally apocalyptic commentary in the days leading up to Thursday night’s announcement.
Those who object to the president’s efforts to unite families should stop hiding behind unfounded legal alarums and debate the president’s actions on the merits.
*Correction, Nov. 21, 2014: Due to an editing error, this post originally misstated the year of Arizona v. United States. (Return.)