President Obama's constant wavering on executive action on immigration has frustrated many immigrant rights organizers who are continuing to request action without further delay. House Minority leader Nancy Pelosi has now chimed in to suggest that delaying executive action would allow for a stronger year-end action. After President Obama's super-strong 2 million deportations, one can only hope that "stronger" year-end action entails bringing home everyone deported, expanding parole-in-place to everyone present without authorization, shutting down for-profit detention centers and massively scaling down devastating immigration enforcement programs such as Secure Communities. Anything less cannot possibly be strong.
While some naysayers are still fuzzy on the legal case for executive action, the President has wide discretion to implement immigration laws as a matter of prosecutorial discretion. This enforcement discretion is rooted in the U.S. constitution, which gives the President broad authority to decide when, how, and against whom to enforce laws. Without further delay, the President should authorize the Department of Homeland Security to expand deportation relief to as many people as possible, while scaling down misguided enforcement programs that are tearing apart immigrant communities program.
While the President has expansive options in front of him, up until recently, some organizations and politicians have appeared to be in the business of managing expectations by suggesting that there are significant limits to the President's broad constitutional authority. For the past year, pro-immigration reform groups in the Beltway acted to protect the President from criticism of his dismal deportation record and unjustified delays on administrative relief while they continued to push for a comprehensive immigration bill that never had any chance of passage. As focus turned toward the President, those same groups promoted an unfounded -- and arbitrary -- perception that the President can extend relief to only 5 million people.
While 5 million may be an optimistic figure for the number of undocumented immigrants who would have benefited from the Senate's failed comprehensive immigration reform legislation, it is not a number imposed by any legal limitations on the President's executive power to use prosecutorial discretion to provide relief to as many people as possible. Instead, it reflects political limitations cooked up by a beltway cynicism that separates immigrants into good and bad, criminal and non-criminal, deserving and undeserving.
Let's be clear about one thing: The legal case for a moratorium on deportation has already been made. Discussion about numerical limitations on administrative relief is as arbitrary as the President's self-imposed and routinely broken timelines. The reality in both is simply a matter of political will.
Naysayers assert that Congressional appropriation of funds for deportation require the President to deport a certain number of people -- namely 400,000 a year. They blame this Congressional appropriation for President Obama's unprecedented deportation of 2 million people. Legally, this issue is murkier. The Supreme Court has yet to weigh in on whether the President can refuse to spend or impound funds in the area of immigration enforcement. While Congress can set priorities, the Executive still holds great deal of power, and he can impound funds in the area of prosecutorial discretion, whether it is the criminal or immigration context.
Some in Washington D.C. also believe that existing law mandates the detention of 34,000 people per day, thereby driving the immigrant detention boom. However, the plain text of the Congressional statute in question simply requires the maintenance of 34,000 detention beds, and not the actual detention of anyone. Even the Secretary of the Department of Homeland Security (DHS), Jeh Johnson, appears to recognize this distinction. Simply put, while there is a Congressional bed mandate, there certainly is no Congressional people mandate.
Nor would a complete moratorium on deportations usurp Congressional power over immigration or result in an imperial Presidency. In fact, many Presidents have asserted more Executive power over immigration matters than Obama, and in some cases, flexed the executive muscle in a manner that has encouraged Congressional action on immigration.
For example, President F. Roosevelt initiated a temporary guest-worker program through a diplomatic agreement with Mexico in 1942. Known as the Bracero program, the initiative existed without Congressional approval for several years. An initiative by the executive, the Bracero program brought almost 5 million Mexicans to work and live in the United States.
Similarly, under President George H. W. Bush, in 1989, the executive allowed undocumented family members of those who had legalized under the Immigration Reform and Control Act of 1986 (IRCA) to live and work in the United States. This program, known as the Family Unity program, was implemented because IRCA did not make provisions to legalize immediate family members of legalized temporary or permanent residents. The Family Unity program permitted family members of IRCA applicants to remain in the United States until they could secure permanent residence through the normal immigration process. The administrative program prevented the deportation of 1.5 million undocumented children and spouses of newly legalized non-citizens. The policy existed in place as an executive action until Congress passed the Immigration Act of 1990, which codified the Family Unity program.
More recently, in 2009, the President suspended the deportations of widows of U.S. citizens. In 2010, Congress made the "widow penalty" history by enacting legislation allowing beneficiaries to immigrate even after the death of their sponsoring petitioners. After continued pressure from immigrant rights groups, President Obama also suspended the deportations of young adults who were brought here as children through the "Deferred Action for Childhood Arrivals" (DACA) program, and granted parole-in-place to family members of U.S. military personnel.
While most of these examples concern smaller groups of people than the current population requiring administrative relief, there should be little doubt that the President can use his prosecutorial discretion in a way that provides for the most relief for the greatest number of people. The fact that legal challenges to administrative actions such as DACA have bit the dust should embolden the President to expand the program to as many people as possible, and not stop at any arbitrary limits imposed by political will.
In doing so, not only would President Obama act in line with a strong Executive tradition of creating immigration policy, but he may also encourage a hapless and inefficient Congress to get it together on immigration reform.