Joseph S. Berman, The Daily Record Newswire
Regardless of one’s political affiliation or views on immigration, President Obama’s Nov. 20 executive order, which defers deportation of approximately 4 million immigrants, raises interesting constitutional issues.
When he was inaugurated for his second term, the president took an oath to “faithfully execute” the law. The oath derives from Article II, §3, cl. 5 of the Constitution, which calls on the president to “take Care [sic] that the Laws [sic] be faithfully executed … .”
In reaction to the executive order, 17 states have sued the federal government, alleging that the president has violated his constitutional duty under the “Take Care” clause by “unilaterally suspending” enforcement of immigration statutes. In response, the president has argued that his order is nothing more than an ordinary exercise of prosecutorial discretion.
As with many complex legal questions, the truth probably lies in the middle. The debate concerns the separation of powers between the executive and legislative branches. And, by invoking the jurisdiction of the federal court, the plaintiff states have brought the third branch of government into the dispute.
The “law” in question is, in reality, a compendium of federal statutes and regulations. Beginning with the Immigration and Naturalization Act of 1952, or INA, Congress authorized the executive branch to remove “aliens” from the United States.
Removable aliens include those who were inadmissible at time of entry, have been convicted of certain crimes, or meet other criteria set by federal law. Arizona v. United States, 132 S.Ct. 2492, 2499 (2012).
Even before the INA passed Congress, courts recognized that immigration “is a field where flexibility and the adaptation of congressional policy to infinitely variable conditions constitute the essence of the program.” United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950).
Discretion is a key feature of the removal system. Arizona, 132 S.Ct. at 2499. As the Supreme Court recognized, “federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all.” Id.
According to recent studies, approximately 11 million people reside in the United States without proper documentation. Yet, the government deports only about 400,000 immigrants annually. Starting in 1975, the Immigration and Naturalization Service formally instituted a program of “deferred action,” by which the executive (formerly the Department of Justice, now the Department of Homeland Security), may defer removal of an immigrant for a period of time.
According to DHS, “deferred action is a form of prosecutorial discretion by which the Secretary deprioritizes an individual’s case for humanitarian reasons, administrative convenience, or in the interest of the Department’s overall enforcement mission.”
In the 1980s, the Reagan and Bush administrations granted a form of administrative relief known as “indefinite voluntary departure,” to defer the deportations of approximately 1.5 million undocumented spouses and minor children who did not qualify for legalization under the 1986 immigration law.
Most recently, in 2012 after Congress failed to pass the DREAM Act, the Obama administration deferred deportation of immigrants who came to the United States as children. The program is known as DACA, for Deferred Action for Childhood Arrivals.
President Obama’s November 2014 executive order extends DACA to parents of citizens and lawful permanent residents and who meet certain criteria (albeit not to parents of children whose only right to remain comes from DACA).
Applicants must have lived in the United States since at least Jan. 1, 2010. They must file a formal request for deferred action and undergo a background check. In addition to deferred deportation, successful applicants also will receive a work authorization and tolling of the time that they are in the United States unlawfully.
The policy prioritizes the removal of certain aliens, such as those convicted of major felonies or who pose a threat to national security. The programs do not “legalize” any immigrants who are unlawfully present in the United States or confer lawful immigration status.
The states sued on Dec. 3, 2014, seeking injunctive relief against the order. They contend that the president has violated his oath by announcing that he will not enforce the immigration laws as they apply to certain immigrants. They argue that deferred action is not simply a decision to not prosecute a particular person, but represents a decision to openly tolerate a class of persons in the United States whose presence violates the law.
The plaintiffs also argue that the executive order goes beyond a simple decision to not prosecute, since it also will allow the affected aliens to obtain work authorizations. By doing so, the executive branch has intruded into an area — making law — that the Constitution reserves for the Legislature.
Using the president’s own words against him, the complaint quotes Obama as saying in the past, “I’m not a king. I am the head of the executive branch of government. I’m required to follow the law. … [w]e have certain obligations to enforce the laws that are in place … . [W]e’ve kind of stretched our administrative flexibility as much as we can. …. Congress has said, ‘here is the law’ when it comes to those who are undocumented, and they’ve allocated a whole bunch of money for enforcement. … What we can do is then carve out the DREAM Act, saying young people who have basically grown up here are Americans that we should welcome. But if we start broadening that, then essentially I would be ignoring the law in a way that I think would be very difficult to defend legally. So, that’s not an option.”
The president’s tone changed after Nov. 20. After signing the order and in response to protesters urging more action on immigration, he said, “I just took an action to change the law.” That comment would seem to go against his protestations of limited authority before he signed the executive order.
In part based on those comments, a federal judge in the Western District of Pennsylvania on Dec. 17 held that the action violated the separation of powers.
The suit by the 17 states alleges that by “refusing to enforce the law on the books,” the president has ignored or rewritten the law and violated his oath and the “Take Care” clause of the Constitution. The executive order will “openly tolerate an undocumented alien’s continued presence in the United States,” with huge costs to the states, which have to provide education, health care and other benefits to the approximately 40 percent of undocumented immigrants who potentially could benefit from the president’s decision.
The states also contend that the order will encourage illegal activity, by increasing the number of people who seek to enter the country without documents.
The Supreme Court has set general parameters for defining the limits of the president’s authority. In Heckler v. Chaney, 470 U.S. 821, 831 (1985), the court listed four factors to determine whether the executive’s action is a proper exercise of his duty to faithfully execute laws passed by Congress.
The factors include whether agency resources are best spent in chasing alleged violators, whether the agency is likely to succeed, whether the particular enforcement action best fits the agency’s overall policies, and whether the agency has sufficient resources to undertake the action at all. Id.
In the absence of specific legislative direction, an agency’s non-enforcement decision is much like a prosecutor’s decision not to indict. Id. at 832-833.
The executive may not, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences. Id. at 833. While, “the power of executing the laws necessarily includes both authority and responsibility to resolve some questions left open by Congress that arise during the law’s administration[,] … it does not include a power to revise clear statutory terms that turn out not to work in practice.” Utility Air Regulatory Group v. EPA, 134 S.Ct. 2427, 2446 (2014).
Although the enforcement of every statute involves prosecutorial discretion, such discretion typically is exercised on a case-by-case basis, not reliance on general criteria that create a presumption of non-enforceability.
Despite the blanket nature of the executive order, President Obama’s Nov. 20 executive order likely will — and should — survive the states’ court challenge. The president has wide latitude to enforce the laws. His order formalizes an unwritten practice of prioritizing certain classes of immigrants for removal. Given budgetary constraints, only a fraction of those in the country without proper documents are deported each year.
The decision to prioritize certain deportations and deferring others rests within the expertise of the agencies that have to enforce the law, which satisfies an important factor under Heckler. The action is temporary. The order emphasizes deportation of high-risk immigrants such as felons and national security threats. Immigration officials retain discretion to screen undocumented immigrants on a case-by-case basis.
The action is not without precedent. For example, the Immigration and Naturalization Service has instituted deferred action programs for victims of human trafficking and their family members, battered women under the Violence against Women Act, and foreign students who were displaced by Hurricane Katrina and therefore could not continue their studies.
Heretofore, Congress has not tried to limit the practice. Although the House of Representatives voted to bar funding for DACA, the bill failed to pass the Senate.
Perhaps the most problematic aspect of President Obama’s executive order is that it allows immigrants to obtain work permits. The plaintiff states make a big deal of that, arguing that the work authorizations go beyond a mere decision to not prosecute; they allow 4 million people without papers to compete for jobs.
However, the INA explicitly gives the executive the authority to grant work permits to particular classes of aliens, even those who are in active removal proceedings. Nothing in the statutes circumscribes the ability of the executive branch to provide work authorizations, even if attached to an action concerning deportation.
Fundamentally, this is an issue of political balance. Has the president flouted the intent of Congress? Obviously not. Civil enforcement of immigration laws is random and arbitrary. Congress has given the executive branch funds to remove only a small percentage of immigrants who lack required documents.
President Obama’s order, which continues an inherent and historical part of the immigration laws, recognizes the reality that most of those protected would not be removed in any event. Congress has not expressed a clear policy of separating unlawful immigrants from their citizen children. Indeed, the opposite is true, since Congress in the past has permitted citizens to petition for deferred removal for family members. The program will promote the humanitarian goal of family unity.
By invoking the jurisdiction of the federal court, the states have further complicated the issue. It is rare for the courts to come between the legislative and executive branches. Cf., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (invaliding President Truman’s takeover of steel mills as outside his authority as executive); Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803). These cases are the exception that proves the rule.
The immigration debate is inherently political. There are political remedies, such as passing legislation or appropriating more funds for enforcement of the immigration laws. Given the different — and emotional — political lenses through which each side views the immigration debate, it would be dangerous for a court to intervene.
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Joseph S. Berman practices at Looney & Grossman in Boston. His law clerk, Kyle Siconolfi, a student at Northeastern University School of Law, assisted him with the article.
