The immigration argument that everyone’s ignoring

Both sides in the debate over President Barack Obama’s immigration reforms have offered simple legal arguments. According to critics, the president is acting unlawfully by defying acts of Congress and arrogating the authority of a king. According to supporters, Obama is acting within his broad discretion as chief executive to deport those he thinks should be deported and let others stay in the U.S.
But the administration’s own legal analysis is much subtler and more precise. The Justice Department’s Office of Legal Counsel argues that the Department of Homeland Security does indeed have the authority to “prioritize” the removal of certain categories of undocumented aliens, and it can create a “deferred-action program” to let some people remain in the U.S. for a specified period. But it has to be careful about how it decides who gets to stay.
Both those conclusions depend on a judgment that the executive’s actions are consistent with legislative policies.
Homeland Security’s prioritization plan singles out three categories of undocumented aliens for deportation: 1) those who pose threats to national security or public safety, or who have been convicted of certain felonies; 2) those who have been convicted of multiple misdemeanor offenses or who have significantly abused visa programs; and 3) those who were issued a removal order in 2014. If undocumented aliens do not fall within these categories, there is a very good chance that the government will not attempt to remove them.
But this plan does not give “amnesty” to anybody. Even if they are outside the three categories, undocumented aliens remain subject to removal if public officials decide it would serve an “important federal interest.” The U.S. has about 11.3 million undocumented aliens, and Congress has given the executive branch enough resources to remove fewer than 400,000 of them. In view of these sharply limited resources, Homeland Security has to make choices. The choices it has made, the Office of Legal Counsel said, are consistent with Congress’ explicit direction to “prioritize the identification and removal of aliens convicted of a crime by the severity of that crime.”
Homeland Security also proposed to create a deferred-action plan for parents of children who are in the U.S. as a result of an earlier deferred-action plan (one created in 2012 for those who immigrated here as children). The OLC found this to be a bridge too far: It would have been based not on Congress’ priorities, but on a prior deferred-action plan created by the executive branch.
Deferred action goes beyond an exercise of prosecutorial discretion, and a general congressional interest in uniting family members doesn’t count as clear authorization for a program of this kind. At the same time, an argument can be made that the OLC gave the president too little. In view of its severely limited resources, maybe the executive branch should be allowed to create the more expansive plan that Homeland Security proposed.
OLC’s nuanced analysis pays careful attention to legal limits on the authority of the executive branch — and offers a powerful argument that Homeland Security hasn’t been given anything like a blank check. •


Cass Sunstein, the former administrator of the White House Office of Information and Regulatory Affairs, is a Bloomberg View columnist.

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  1. President Obama had complete control of the United States Senate and the United States House of Representatives in 2009 and 2010. He could have easily passed immigration reform legislation without any Republican help. He did not offer a bill. Now, President Obama is blaming the Republicans for not passing comprehensive immigration reform legislation. President Obama knows that House Republicans want the borders to be secured first and the rest of the immigration reform plan to be passed in small easily understandable pieces of legislation. Instead of working with Republicans to get a bill passed, President Obama has spent nearly two years blaming the Republicans for not getting an immigration reform bill passed. When Mitt Romney was Governor of Massachusetts, he met weekly with the leaders of the democratically controlled Massachusetts Legislature to pass comprehensive education reform legislation and universal healthcare reform legislation. 98% of Massachusetts’ residents had healthcare insurance and Massachusetts had the best education system in the United States. Kenneth Berwick, Smithfield, RI