Obama’s Legal Justification For His Immigration Order Is Actually Far Too Timid

CREDIT: AP Photo/Jacquelyn Martin

President Barack Obama speaks to the media about the government’s Ebola response, in the Oval Office of the White House.

Despite widespread claims from President Obama’s political opponents that the immigration order he announced Thursday night is illegal or even unconstitutional, the question of the order’s legality is not even particularly close. As the Supreme Court explained in 2012, the executive branch has “broad discretion” in matters of immigration and deportations. According to the Court, federal law lays out classes of foreign nationals that the executive “may” remove from the country within their discretion, but federal officials also retain the power to “decide whether it makes sense to pursue removal at all.” Both President Ronald Reagan and President George H.W. Bush issued orders similar to President Obama’s, which gave a broad class of immigrants an opportunity to remain in the country even though they were subject to deportation.

Indeed, if anything, the Obama Administration’s own legal justification for its order is too timid. President Obama’s order denies relief to tens of thousands of immigrants because the Justice Department believed that extending relief to these immigrants would not be legal. The Justice Department’s reasoning, however, is hard to square with the broad discretion granted to the executive branch in this space.

President Obama’s order extends to approximately 4.9 million undocumented immigrants, the bulk of whom are parents of U.S. citizens or legal permanent residents. One category of immigrants who are not included, however, are the parents of undocumented immigrants who are currently benefiting from a previous immigration order from President Obama. That order created the Deferred Action for Childhood Arrivals (DACA) program, which allowed young people who came to the United States as children to remain in the country. A senior Obama Administration official told ThinkProgress, however, that they ultimately decided that Obama lacks legal authority to extend relief to the parents of DACA beneficiaries, even though he could extend relief to other immigrant parents. “On the question of stand-alone parents of DREAMers,” the official claimed, “it was something we consulted with the Department of Justice very closely and we ultimately concluded we couldn’t do it.”

The administration’s legal justification for its actions are laid out in a 33-page memorandum from the Justice Department’s Office of Legal Counsel. As this memo notes, the executive branch’s discretion in this space is quite broad. As Justice Antonin Scalia explained in his majority opinion in Reno v. American-Arab Anti-Discrimination Committee, “the Executive has discretion to abandon the endeavor” at each stage of the process for removing a foreign national from the country. Moreover, there are numerous precedents for the executive branch offering relief from deportation to a class of immigrants. In addition to the Reagan and Bush I orders mentioned above, for example, the George W. Bush Administration granted relief to foreign students who were no longer able to comply with their student visa’s requirement that they maintain a “full course of study” after their campuses were devastated by Hurricane Katrina. As a general rule, these past orders have required an application process and the executive branch has retained the right to refuse relief to individual immigrants, but there is nothing unusual about the executive branch announcing that it will grant relief to broad swaths of immigrants who fit a particular description.

These orders are also justified under a practice known as “prosecutorial discretion.” As the Justice Department’s legal memo explains, “there are approximately 11.3 million undocumented aliens in the country,” but the federal government only “has the resources to remove fewer than 400,000 such aliens each year.” The fact that Congress has only provided sufficient resources to the executive to remove a small fraction of the undocumented immigrants within the United States is itself a legislative judgment that most immigrants should not be removed. If Congress wanted every single undocumented individual removed from the country, they would communicate that fact by providing enough resources that it would not be an impossible task.

As the memo explains, “when Congress vests enforcement authority in an executive agency, that agency has the discretion to decide whether a particular violation of the law warrants prosecution or other enforcement action.” Similarly, as the Supreme Court explained in Heckler v. Chaney, “[a]n agency generally cannot act against each technical violation of the statute it is charged with enforcing,” so they may choose to focus their resources on certain kinds of enforcement. It makes more sense for the executive to be thoughtful about which 400,000 foreign nationals they remove each year — and to give a high priority to dangerous individuals such as serious felons or potential terrorists — than to just randomly deport the first 400,000 undocumented immigrants that federal officials happen to stumble upon.

DOJ’s memo cites this need to be thoughtful about the use of limited resources as a justification for allowing the parents of citizens and lawful permanent residents to remain in the United States. Yet it also offers another justification. “Numerous provisions of” federal immigration law “reflect a particular concern with uniting aliens with close relatives who have attained lawful immigration status in the United States,” the memo explains. And thus the legal justification for allowing these individuals to remain in the country is particularly strong. Unlike citizens and lawful permanent residents, however, DACA beneficiaries are technically not lawfully residing in the country. The DACA order reflects the federal government’s decision that it should not expend limited resources on young people who should not be held accountable for their family’s decision to bring them to the country at a very young age, but it does not actually grant its beneficiaries legal status. If President Obama is replaced by a president with different enforcement priorities, DACA recipients could still be removed from the country.

The distinction between parents of people who are lawfully present and people who are technically not in the country legally, according to DOJ, is significant. “Many provisions of” federal immigration law, “reflect Congress’s general concern with not separating individuals who are legally entitled to live in the United States from their immediate family members,” the memo explains. “Extending deferred action to the parents of DACA recipients would therefore expand family-based immigration relief in a manner that deviates in important respects from the immigration system Congress has enacted and the policies that system embodies.”

The Justice Department is correct that the legal justification for protecting parents of citizens and lawfully permanent residents is especially powerful. But the fact that the president stands on unusually firm ground when he grants relief to one class of people does not mean that he is on weak ground if he grants it to another class of individuals. Many current DACA recipients, for example, do not have family members who are citizens or lawful permanent residents. That does not mean that the DACA order is illegal.

Recall that a major justification for the president’s exercise of discretion in this area is the fact that Congress only chose to give his administration enough resources to remove a small fraction of the total number of undocumented individuals within the United States. As Heckler suggests, this mismatch between the number of people in the country without legal authorization and the resources provided by Congress necessarily requires the administration to set priorities regarding who will be targeted. Arguably, the president would go too far if he exempted so many people from removal that the resources Congress provided for immigration enforcement laid fallow, but that is simply not the case here. Nor would it be the case if President Obama included the parents of DACA beneficiaries in his order. Millions of undocumented immigrants would remain unprotected even if these parents were included.