President Obama has the legal authority for prosecutorial discretion in immigration matters, so get over it people!


Tea-Publicans and wingnut pundits in the conservative media entertainment complex like to bandy about words like “lawless” and “unconstitutional” when talking about President Obama’s executive order for the Deferred Action for Childhood Arrivals (DACA) program, drivers licenses for the DREAMers, etc., because they are political  propagandists who want to portray the president as a tyrant who should be impeached as a means to fire up their wingnut base (this is how they shake down the ignorant rubes who listen to them rant all day and separate them from their money). They are con men, pure and simple.

On purely legal grounds, their unhinged propagandist accusations are unadulterated bullshit. The feckless media villagers really have to stop being stenographers who rotely report “Republicans say…” and, oh I don’t know, pick up the damn phone and talk to an immigration lawyer who actually knows what the hell he or she is talking about! Is that too much to ask?

I have previously posted this piece by Greg Sargent of the Washington Post, Lawyers agree: Obama has broad authority to act on deportations:

Image: Latinos protest in favor of comprehensive immigration reform while on West side of Capitol Hill in WashingtonWith Obama administration officials debating how aggressively to use unilateral action to shield people from deportations, more than 100 immigration law professors have signed a letter to the President (.pdf) arguing that he has expansive legal authority to act to temporarily protect additional groups from removal — and that this authority is rooted in statute, court opinion, regulations, and precedent.

The letter (.pdf), which was shared with this blog before its release, is designed to make the case to media and opinion-makers that Obama has maximum legal room to maneuver — which could shape how much political space the administration thinks it has on this difficult and explosive decision.

The letter — which was distributed by the American Immigration Council and the National Immigration Law Center — was signed by over 130 professors, attorneys and experts, some from the major Ivy League law schools, and others from border and red states that are relevant to the politics of this decision.

The short version of the letter’s argument is as follows. The administration has the authority to exercise “prosecutorial discretion” when deciding how to apply limited resources to the act of enforcing immigration laws. This discretion is grounded in the Constitution and has been recognized in statute and regulations for decades. Numerous administrations have used prosecutorial discretion to protect both individuals and groups from removal — and have historically justified these actions with humanitarian reasons.

The argument continues as follows. There are multiple forms of prosecutorial discretion, of which “deferred action” is one. Deferred action, too, has existed as a category for many years — and predates DACA. Therefore, DACA  and/or its expansion confer an already existing designation and create no new form of immigration status. While deferred action does confer the ability to work, it did so before DACA. Deferred action — before, and under DACA and/or its expansion — merely provides a temporary reprieve from deportation, without providing any route to permanent residency or formal legal status. What’s more, before DACA, previous administrations, and the Obama administration, granted deferred action not just to individuals, but to large classes as well.

In other words, the letter seeks to rebut the leading legal and political arguments against both DACA and its expansion — the suggestion that granting deferred action status to groups crosses a line into rewriting or non-enforcement of the law; and the notion that it confers a quasi-amnesty status. Some have argued that the scale and numbers of those impacted by DACA and/or its expansion, combined with the awarding of work authorization and bureaucratic trappings, push the program into new territory. But the letter concludes:

Some have suggested that the size of the group who may “benefit” from an act of prosecutorial discretion is relevant to its legality. We are unaware of any legal authority for such an assumption…A serious legal question would arise if the administration were to halt all immigration enforcement, because in such a case the justification of resource limitations would not apply. But the Obama administration to date appears to have enforced the immigration law significantly through apprehensions, investigations, detentions and over two million removals.

In conclusion, we believe the administration has the legal authority to use prosecutorial discretion as a tool for managing resources and protecting individuals contributing to the United States in meaningful ways. Likewise, when prosecutorial discretion is exercised, there is no legal barrier to formalizing that policy decision through sound procedures that include a form application and dissemination of the relevant criteria to the officers charged with implementing the program and to the public. As the Deferred Action for Childhood Arrivals (DACA) program has shown, these kinds of procedures help officers to implement policy decisions fairly and consistently, and they offer the public the transparency that government priority decisions require in a democracy.

That last point has implications for the political debate as well as the legal one. Some have argued that even if an expansion of DACA is legal, it violates political norms because it seems to flout Congress by crossing over into policy-making territory. But the counter-argument here is that DACA amounts to the streamlining, clarification, formulation, and implementation of broad enforcement priorities that pretty much everyone already agrees are legitimately within the executive’s authority to apply. So the question for those making the political norms argument is: If it’s legitimate to exercise prosecutorial discretion in this fashion, why isn’t it also legitimate to refine its implementation in ways designed to benefit the country?

The problem, as I’ve noted before, is that the question of whether something like this violates “political norms” is largely subjective. This does feel like something new.

* * *

In this context, the letter can also be seen as an effort to stiffen the spines of Democrats who worry about the politics of Obama’s coming action and of administration officials who may be inclined towards a cramped view of his legal authority to move forward with it.

President Obama is well within his lawful, constitutional rights to exercise prosecutorial discretion with respect to undocumented immigrants. He is not “rewriting” the immigration laws that Tea-Publicans refuse to reform, and he is not doing anything that even remotely rises to a “high crime and misdemeanor” that merits impeachment.

That would have been the Bush-Cheney administration which lied this country into an unnecessary and illegal war based upon faalsified intelligence, and committed war crimes for which they should stand trial before a Nuremberg-style Commission if this country ever wants to reclaim its lost soul and moral standing in the world.


  1. In reply to Sarah (because there is no reply for your post for whatever reason)
    A bipartisan CIR bill has been sitting on Boehner’s desk collecting dust for almost 2 years. It has passed the Senate and is waiting for Boehner to put it to a vote in the House. He won’t do it because it WILL PASS. It WILL PASS w/o any votes from the Tea Party nut jobs. It would pass with solely Republican and Democratic votes…bypassing and neutering them anyway.

  2. Who cares about conservatives they better hope they don’t become illegal themselves. African-americans are the right fist of the democratic party and latinos, asians and native americans the left fist of the democratic party republicans go down for the count!

    • It’s not going to happen and you are fortunate it won’t. After all, if the GOP went away tomorrow, who would you hate then? And you WOULD need to hate someone because so much of your life is vested in hatred.

  3. If you Democrats were that comfortable that Obama is within his legal constitutional authority, you would not be screaming so loud at this juncture. The truth is that there is every reason to believe he is NOT working within his Constitutional authority and you all are terrified that will wind up being the case.

    So you have a letter from a biased left wing think tank signed by more than a hundred left wing legal scholars stating it is okay for him to do this. What a surprise! There is an equal number of conservative legal scholars who say it is NOT Constitutional for him to do what he is threatening to do. So no one is going to be “getting over” anything if Obama is willing to split the Country even further by taking this route to grow some more Democrat voters.

    The “UP” side of all this, if there is one, is that his proposed actions will do even more to solidify the conservative movement.

    • Within his legal authority or not, this will be done and this will end up in court. Obama may have the authority to do this unilaterally, but I’m also inclined to believe it will strengthen right wing opposition to immigration.

      Out of curiosity, would Democrats accept a compromise of permitting legal status for illegal immigrants who generally have been here some time (thinking at least 3-5 years) and generally have no felony convictions that absolutely excludes the possibility of citizenship? Other legal statuses such as permanent residency would remain an option, but citizenship would be wholly excluded. Just wondering if that’s a possibility for compromise.

      • There is one way to definitively answer this question. The house could pass a bill with the requirements you state and see how many D’s vote for it.

        Personally not happy about creating a priest of people who are second class citizens. but such an outcome is superior to the status quo.

        • Do you think it would be too similar to the old idea of having same-sex “civil unions” and perhaps be a case of entrenched inequality? Ultimately the primary need of illegal immigrants is to be able to work legally and earn higher wages, and even though it’s not optimal, a compromise that excludes citizenship would allow legal work.

          My other concern is that permitting citizenship for those who immigrated illegally could seem to undermine the efforts of those who engaged in a lot of time, hard work, and spent a lot of money to legally become American citizens. How do we address this concern?

          • Since the people that entered illegally will have to learn English (if they don’t know it already) pay a FINE, and BACK TAXES…and go to the BACK OF THE LINE FOR CITIZENSHIP..what’s the problem?

          • More info:

            The President’s proposal provides undocumented immigrants with a legal way to earn citizenship so they can come out of the shadows. It holds them accountable by requiring they pass background checks, pay taxes and a penalty, go to the back of the line, and learn English. It requires everyone to play by the same rules.

          • The problem is getting this past the Tea Party without having to have Obama act unilaterally, which will perhaps cause push back that makes it even harder in the long run to enact immigration reform.

    • More than 100 legal scholars — law professors and lawyers who specialize in constitutional law — are wrong, but a blog troll who regularly demonstrates that he knows nothing about the law is right? That’s what makes it trolling, Dude.

  4. Do it now! The arizona democratic party should hold a celebration for our newest americans welcoming them here. Democrats should let them know that they are welcome here and republican racists are NOT welcome in arizona.

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