The Immigration Debate – Part 1

Things you never see reported in the Arizona media because it does not fit their GOP-friendly media narrative. [Update: See the “editorial opinion” of The Arizona Republic obviously written by Doug MacEachern, Executive order a bad idea – now or later in which he asserts “a legally dubious executive order” that will lead to “a full-blown constitutional crisis” and “prod Republicans into impeachment overreach.” All GOP talking points, all the time.]

Greg Sargent of the Washington Post reported last week, Lawyers agree: Obama has broad authority to act on deportations:

 

With 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. Leading opinion-makers have already demonstrated ample discomfort with it, based (again) on what appear to be largely subjective grounds. Partly because of this — and partly because of other political and demographic considerations — vulnerable Democratic incumbents and Dem operatives don’t want to take on this political challenge before the elections. There’s a good case to be made that such worries are overstated and that delaying may not solve the political problems that will inevitably be associated with these actions. But Dem worries appear to run very deep and may lead Obama to delay. For all we know the administration itself may decide it is far more constrained from acting than many lawyers and experts believe.

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.

On Friday, the Arizona media did publish this AP report, Obama lays out immigration goals, not timing:

Leaving his timing uncertain, President Barack Obama laid out ambitious objectives Friday for immigration steps he intends to take on his own and said he had already received some recommendations from the Homeland Security and Justice departments for executive action he could implement without Congress.

Facing competing pressures from immigration advocacy groups and from Democrats nervous about November’s midterm election, Obama made no commitment about whether he would act in the coming weeks as he had earlier pledged. [The only point in this discussion that the media is fixated on: timing over the substance of the policies.]

“My expectation is that fairly soon, I’ll be considering what the next steps are,” he said during a news conference in Wales at the end of a two-day NATO summit. [In the grand scheme of life, before the end of this year is “fairly soon.“]

Still, Obama spelled out his goals with a degree of specificity that he had previously not detailed.

He said that without congressional action to overhaul the immigration system, he would take steps to increase border security, to upgrade the processing of border crossers, to encourage legal immigration and to give immigrants who have been illegally in the United States for some time a path to become legal residents, pay taxes, pay a fine and learn English.

“I want to be very clear: My intention is, in the absence of…action by Congress, I’m going to do what I can do within the legal constraints of my office, because it’s the right thing to do for the country,” he said.

* * *

Legal experts and lawmakers have debated the extent of Obama’s authority, and Holder’s and Johnson’s recommendations remain closely held. [Not publicly disclosed.] It’s also unclear how far Obama could go without congressional approval in meeting the goals he delineated Friday.

* * *

[T]he White House has been under pressure from some Democrats to delay any action until after the elections out of fear that taking steps now would energize Republican opposition against vulnerable Senate Democrats. Some have voiced misgivings about Obama acting on his own at all.

“We need to fix our nation’s broken immigration system, which is why I supported the Senate’s bipartisan, comprehensive immigration reform bill,” said Sen. Al Franken, a Democrat seeking re-election In Minnesota. “I have concerns about executive action. This is a job for Congress, and it’s time for the House to act.”

Advocacy groups have countered by stepping up their calls for swift action. In a letter to Obama on Friday, leaders of major pro-immigrant groups called on him to stick to his self-imposed deadline and “not to allow shortsighted political interests to get in the way of doing what is right for our communities and our country.

“Being a leader requires making difficult and courageous decisions,” the letter, whose signers included the National Council of La Raza and the League of United Latin American Citizens, said. “It is your time to lead, Mr. President.”

So what happens next? See Part 2.