Last month, the Supreme Court heard oral arguments in
United States v. Texas, a lawsuit brought by twenty-six states challenging President Obama’s
immigration policies. The case deals specifically with the constitutionality
of the President’s 2014 Deferred Action for Parents of Americans
(DAPA) program, which offers “deferred action” to undocumented
immigrants who are law-abiding parents of American citizens. Roughly four
million people could qualify under the program, which would allow them
to remain in the United States for three years and to apply for work authorization,
on a renewable basis.
At the heart of the case is a question about the permissible scope of executive
discretion. When the President executes federal laws, to what extent can
he interpret and implement them in a manner consistent with his own policy
objectives? From a constitutional standpoint, Article II provides that
the President must “take care that the laws be faithfully executed.”
This provision has its roots in the aftermath of the Glorious Revolution
of 1688, when the English Parliament took away the King’s power
to suspend acts of Parliament. The Framers of the American Constitution,
similarly concerned about the exercise of unchecked executive power, adopted
the “take care clause” of Article II.
Also at stake in this controversy is the longstanding tradition of prosecutorial
discretion. The executive authority in the United States has traditionally
had wide latitude to determine whether to bring charges against alleged
lawbreakers. Because prosecutors often do not have the resources to pursue
every possible case, they have always been understood to have the responsibility
to prioritize more important cases over less important ones. The memorandum
authorizing DAPA reasoned that the Executive Branch could appropriately
rely on this traditional discretion to delay deportation in the least
important immigration cases.
The Obama administration cites the Supreme Court’s 1985 decision in
Heckler v. Chaney to support the constitutionality of DAPA. In that case, several inmates
on death row argued that the use of particular drugs for lethal injection
violated federal law, and they sought a court order to compel the Federal
Drug Administration (FDA) to enforce the governing statute. The Supreme
Court agreed with the FDA that the agency could lawfully exercise discretion
not to enforce the statute.
The Court in
Heckler also suggested, however, that the principle of prosecutorial discretion
was not unlimited. For example, that principle might not justify an extremely
broad policy decision that completely sets aside an agency’s legal
responsibilities. Thus, although a prosecutor can decide not to press
charges against particular cocaine smugglers, the Executive Branch cannot
casually decide to stop enforcing duly-enacted federal drug laws altogether.
With that distinction in mind, the central question in the challenge to
DAPA, like most legal questions, involves a choice between competing analogies.
Is President Obama’s immigration policy similar to the prosecutor
who declines to press charges in particular cases, or is it a broad policy
decision that abdicates his responsibility to faithfully execute the law?
The strongest argument against Obama’s policy points to its political
backdrop. The President attempted initially — and unsuccessfully
— to persuade Congress to enact legislation similar to DAPA. It
was only after he failed in that effort that he turned to executive action.
In light of the fact that the President promulgated DAPA in order to accomplish
by executive action what he could not get Congress to approve, to what
extent can the President’s action persuasively be cast as the legitimate
exercise of prosecutorial discretion? This is a serious objection to DAPA.
On the other hand, though, the considerations that support deference to
prosecutorial discretion in this situation are quite strong. There are
currently 11.3 million undocumented immigrants in the United States, and
the Department of Homeland Security has the resources to remove only 400,000
per year. If at least 10.9 million undocumented immigrants will remain
in the United States this year no matter what, then offering deferral
to the 4 million undocumented immigrants who are the lowest priority for
deportation seems like a straightforward application of prosecutorial
discretion, albeit on a larger scale than usual. For this reason, both
sides conceded at oral argument that if President Obama had simply identified
four million individuals and issued each of them a “low priority”
card, he would have acted within the bounds of his power.
The particularly controversial aspect of DAPA is that it ties deferred
action to substantive benefits. Although the beneficiaries of DAPA are
not eligible for services such as food stamps, they are eligible under
the program to apply for work authorization and to participate in programs
such as Social Security. At oral argument, this resulted in a linguistic
battle between the government and Chief Justice Roberts. Because deportation
is merely deferred under DAPA, the undocumented immigrants who benefit
from the program are not “legally present” in the United States,
but at least for the purposes of work authorization, DAPA deems them to
be “lawfully present.”
The solution to this riddle depends on whether the benefits conferred on
the beneficiaries of DAPA can be tied to the President’s lawful
exercise of discretion. On this point, important practical considerations
cut in President Obama’s favor. First, every deferred action program
authorized by presidents since the 1970s has carried with it the potential
for work authorization. There is therefore strong precedent for the President’s
policy. Second, and perhaps more important, once it is agreed that the
President has the legal authority to defer removal for this subset of
undocumented immigrants, it would seem cruelly inconsistent to allow these
individuals to live in the United States while simultaneously denying
them the means to support themselves.
It is important to bear in mind that the benefits at issue are quite limited.
The long-term legal status of the beneficiaries of DAPA remains unchanged,
and the government can still deport them at a later time. While they can
earn credits for the purpose of Social Security, they likely won’t
benefit from those credits unless they receive a more permanent legal
status in the future and are able to remain in the United States until
retirement age. Finally, DAPA is advantageous to the nation in the sense
that once recipients receive work authorization, they can start contributing
to the tax base.
Perhaps most fundamentally, these aspects of DAPA do nothing more than
ensure that those who are authorized to live here are allowed to earn
a living. Justice Samuel Alito wondered during oral argument how it is
possible to lawfully work without being lawfully present. Perhaps a better
question would be to ask how a nation could with one hand offer a man
a home, and with the other punish him for wanting to pay the rent.
REVILLA LAW FIRM, P.A.
Miami immigration lawyers concentrating in the areas of Employment-Based
Immigration, Family-Based Residency, Naturalization, and Removal Proceedings.
We have successfully represented thousands of clients in all areas of immigration
law with our decades of experience and unrelenting committment to each
case. Our immigration attorneys know how to identify important issues
and will develop legal strategies to help you achieve the best outcome
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Call: (305) 858-2323 or toll free (877) 854-2323.