President Obama’s Deportation Deferral Order Is Legal

“We will see each other down the line in litigation.” That threat was leveled by Rep. Steve King (R-IA) at Department of Homeland Security (DHS) Secretary Janet Napolitano during a Congressional hearing last week. After President Obama’s decision to temporarily defer deportations for certain young undocumented immigrants, Rep. King immediately stated his intention to challenge its legality in court. Based on legal precedent, however, his lawsuit is meritless and will be quickly dismissed.

Deferred action is not only legal, but was in regular use before the administration’s decision to expand it. Immigration and Naturalization Service (INS) Commissioner Doris Meissner pointed out back in 2000 that “INS has prosecutorial discretion, and it exercises it every day.” Meissner specifically noted that this discretion “applies not only to the decision to issue, serve, or file a Notice to Appear (NTA), but also… deciding whom to stop, question, and arrest… settling or dismissing a proceeding, granting deferred action, or staying a final order.”

In Reno v. American-Arab Anti-Discrimination Committee525 U.S. 471 (1999), the Supreme Court affirmed that “in the deportation process, [a]t each stage the Executive has discretion to abandon the endeavor, and at the time [the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA)] was enacted the INS had been engaging in a regular practice (known as “deferred action”) of exercising that discretion for humanitarian reasons or simply for its own convenience…. many provisions of the IIRIRA are aimed at protecting the Executive’s discretion from the courts–indeed, that can fairly be said to be the theme of the legislation.”

These administrative and court decisions have clear basis in legislation. As noted by the Court in Reno, “8 U. S. C. § 1252(g)… restricts judicial review of the Attorney General’s ‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act.'” Moreover, 8 U.S.C. § 1227(d) under “Deportable Aliens” explicitly discusses “the authority of the Secretary of Homeland Security or the Attorney General to grant a stay of removal or deportation in any case not described in this subsection,” meaning that Congress authorized deportation deferrals.

Rep. King is not satisfied with this legal foundation. “I accepted the prosecutorial discretion when it dealt with individuals,” he told Sec. Napolitano. “I do not when it deals with groups of people that are created by a memorandum.” But this distinction is weak. Deferrals are still determined on a case-by-case basis. Prosecutors simply base their decisions on these categories, which is not new. Meissner’s memo noted that criteria for its use in 2000 included length of residence, criminal history, humanitarian concerns, military service, and availability of agency resources.

Rep. King is also upset that if these young immigrants stay, some may be allowed to work in the U.S. “Our visas and work permits are a creation of Congress, not the executive branch,” he told Sec. Napolitano. Yet as the secretary’s memo notes, “this memorandum confers no substantive right, immigration status, or pathway to citizenship.” Nonetheless, under current law 8 CFR § 274.12 (c)(14), DHS can issue Employment Authorization Documents (EADs) to any person “who has been granted deferred action… if the alien establishes an economic necessity for employment.”

Pres. Bush used this deferral authority for undocumented immigrants during Hurricane Katrina, and Republican Governor of Mississippi Haley Barbour was thankful. “I don’t know where we would have been in Mississippi after Katrina if it hadn’t been for the Spanish speakers who came in to help rebuild,” he said in 2010. “If they hadn’t come and stayed for a few months or a couple years, we’d be way, way behind.” Rep. King never threatened to drag Pres. Bush into court.

Immigration restrictionists may disagree with this particular use of prosecutorial discretion, but they do not disagree with its use in principle. When 60,000 Alabama businesses missed their state’s deadline to sign up for E-Verify–the employment verification program designed to catch undocumented workers–the state extended them a temporary amnesty. Alabama DHS spokeswoman Katheryn Kennedy said, “Right now we’re not penalizing businesses. We’re trying to help them, to be a safe harbor.” Georgia and Arizona had to offer similar E-Verify amnesties.

This decision would not allow Pres. Obama to refuse to enforce tax law, as Rep. King and conservative Charles Krauthammer have charged, but if millions of Americans suddenly refused to pay taxes, it would allow him to set enforcement priorities. Given a population of between 10 and 12 million undocumented immigrants, a decision that affects barely ten percent of them (1.4 million) seems justifiable from an administrative perspective. While the congressman believes the order is a general refusal to enforce immigration laws, this targeted approach has resulted in a record 1.2 million deportations in the president’s first three years in office. The idea that the deportation record-holder is not enforcing immigration law is self-evidently absurd.

Discussing the Constitution’s presidential pardon power, Federalist 74 concludes that “without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.” The Founders understood that discretion plays an important role in responsible enforcement–a role recognized in the immigration laws Congress passed. If Congress wants to revisit the discretionary powers it has vested in the executive, it is free to do so. Until then, restrictionists will just have to deal with a few more immigrants picking vegetables, starting businesses, and providing services that benefit all Americans.