President Obama is widely expected to issue an executive order permitting millions of undocumented immigrants to remain in the country without fear of deportation — or at least, without fear of deportation for as long as the order remains in effect. Indeed, sources tell ThinkProgress that the president is likely to announce the order on Thursday.
Congressional Republicans, as they often do when they disagree with a particular policy, claim that this executive order is illegal. Indeed, Sen. Jeff Sessions (R-AL), a leading opponent of immigration reform, claims that the executive order is an “unconstitutional action.”
Yet, the Supreme Court of the United States, including two of the Court’s conservative members, appear to disagree with Sessions and others who doubt the legality of the president’s impending action. In 2012, the Supreme Court struck down several provisions of Arizona’s controversial immigration law SB 1070. Justice Anthony Kennedy wrote the Court’s 5–3 opinion in Arizona v. United States, which was joined by Chief Justice John Roberts (Justice Elena Kagan was recused). Both Roberts and Kennedy are Republicans.
Kennedy’s opinion in Arizona does more than strike down several provisions of a state law, however. It also includes language highlighting the “broad discretion” the executive branch enjoys in matters relating to immigration:
Congress has specified which aliens may be removed from the United States and the procedures for doing so. Aliens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law. Removal is a civil, not criminal, matter. A principal feature of the removal system is the broad discretion exercised by immigration officials. Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal.
Several details of this passage are worth noting. The Supreme Court says that aliens “may” be removed if they meet certain criteria, not that they “must” be removed under the law. The executive branch does not simply enjoy “broad discretion” over who is or is not removed, it also “must decide whether it makes sense to pursue removal at all.” Thus, according to the Supreme Court, the law clearly contemplates cases where the executive branch will choose not to remove someone that could be subject to deportation.
Admittedly, there may be some limits on executive discretion in this space. One provision of federal immigration law provides that the “[t]he Attorney General shall take into custody any alien who” meets certain criteria, such as they have committed a serious crime or they have previously “engaged in a terrorist activity.” As a constitutional matter, there are strong legal arguments that the executive branch may invoke something known as “prosecutorial discretion” if they do not wish to detain someone that the law commands them to “take into custody.” It is unlikely, however, that President Obama’s order will shield serious criminals or terrorists, so this constitutional issue likely will not need to be resolved.
In contrast to the mandatory language governing major criminals and terrorists, the statutory language governing most other removals of undocumented immigrants is far more permissive. It provides that certain individuals “shall, upon the order of the Attorney General, be removed.” Here, the key words are “upon the order of the Attorney General,” which indicates that an executive branch official has discretion to decide whether most undocumented immigrants are deported.
The Supreme Court’s opinion in Arizona also suggests that the executive branch’s discretion in matters of deportation may be exercised on an individual basis, or it may be used to protect entire classes of individuals such as “[u]nauthorized workers trying to support their families” or immigrants who originate from countries torn apart by internal conflicts:
Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state may be mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.
Notably, President Obama issued his Deferred Action for Childhood Arrivals (DACA) order permitting many young undocumented immigrants to remain in the country on June 15, 2012. Arizona was decided on June 25, 2012. So the idea that the president might use his power to grant a broad class of undocumented immigrants new rights via an executive order would have been very much on the justices’ minds at the time that Justice Kennedy wrote language into the Arizona decision laying out the breadth of the executive branch’s discretion. It certainly was on Justice Antonin Scalia’s mind, who railed against the DACA order in a dissenting opinion.
President Obama also is not the first president to exercise his discretion to give broad relief to a class of undocumented immigrants. In 1987, the Reagan Administration granted relief from deportation to the minor children of parents who benefited from a 1986 immigration reform, even though the 1986 law did not grant that relief directly to those children. Three years later, President George H.W. Bush granted similar relief to approximately 1.5 million “family members living with a legalizing immigrant  who were in the U.S. before passage of the 1986 law.”