Much has been written in the last few weeks about the news that President Barack Obama has finally decided to take action on Immigration, with the goal of deferring the removal of undocumented immigrants in the United States. After previous false starts, it appears that this time the President is finally going to do it. Does he have authority to do so?
The simple answer is yes! In our form of government, the execution of the laws are plenary authorities conferred on the executive branch by the constitution. The decision to allocate resources and enforce the laws are decisions made by thousands of government offices every day. Which crimes to prosecute, how to prosecute, negotiate pleas, etc., are decisions the executive branch makes every day in this country. So it is up to the executive to decide how to allocate resources to arrest, charge and remove undocumented immigrants in this country.
The president is not conferring legal status on the undocumented. He is only deferring their removal from the United States. The same way he deferred the removal of Dreamers in 2012.
This will not be the first time a U.S. president has exercised this authority in the context of Immigration laws. Since 1990, various presidents have issued Temporary Protected Status (TPS) to undocumented immigrants in this country. Granted the TPS statute was passed by congress, the executive has wide discretion on when and how to apply it. There has never been ANY outcry over this. For instance, citizens of El Salvador, Nicaragua, Kuwait, Bosnia-Herzegovina, Liberia, Sudan, Somalia have been granted TPS at various times and thus avoided deportation from the United States. The deferral of removal the president is reportedly contemplating is not much different than TPS.
In 1987, president Ronald Reagan’s administration took executive action to unilaterally extend the benefits of the 1986 Amnesty to spouses and children of amnesty recipients. The spouses and children were otherwise not qualified for the Regan Amnesty. There was no outcry over this as the President was seen as addressing a problem within his authority.
The U.S. House of Representatives has refused to take action on the Immigration bill that passed through the Senate with bipartisan support. The House argues that their action or inaction, is consistent with the House of Representative’s independent power to prioritize the bills to take up. That they are not required take action just because the Senate did (even if this was because of pressure from the far right bent on defeating any immigration reform effort).
In the popular culture film, My Cousin Vinny, attorney Gambini asked the expert Ms. Vito whether the “defense holds water”. The answer here is yes. Yes, the president has the authority to defer the deportation of millions of people present in the United States. Other presidents have exercised their executive powers similarly. Those assailing the president as going beyond his authority are doing so without proper legal authority.