On June 15, President Obama announced a program by which certain residents of the United States who came to, or stayed in, the United States contrary to law could remain and work legally – that is, immune from deportation. This is often characterized as an executive order. The order was not technically what is called a presidential Executive Order. Instead, as the President said, it is a policy of Janet Napolitano, Secretary of the Department of Homeland Security with, obviously, the President’s approval who himself made the announcement.
There are a host of problems with this policy. Some of them have been described elsewhere. Let’s recap three and then move to what I believe are new ones.
1) The President’s Own Prior View of the Illegality of This Executive Action
President Obama, a lawyer himself and whose office includes lawyers in the Office of White House Counsel, had stated on March 28, 2010, at a town hall sponsored by the Univision television network, “There are laws on the books that Congress has passed,” that legislation would be required to do what he did on June 15. He gave no reasons on June 15 as to why his opinion on the legality of his program was wrong on March 28, 2010. And the DHS website’s Q&A on this issue states the following:
[Q:] Is passage of the DREAM Act still necessary in light of the new process?
[A:] Yes. As the President has stated, individuals who would qualify for the DREAM Act deserve certainty about their status, and this new process does not provide that certainty. Only the Congress, acting through its legislative authority, can confer the certainty that comes with a pathway to permanent lawful status.
2) This Program Does Not Constitute an Exercise of Prosecutorial Discretion
The number of eligible individuals is estimated at over 800,000, perhaps as many as 1.4 million, roughly 10% of the estimated 11 million illegal immigrants. This is a waiver on a grand, grand scale. Columnist Charles Krauthammer has rejected the Administration’s claim that this constitutes prosecutorial discretion:
Prosecutorial discretion is the application on a case-by-case basis of considerations of extreme and extenuating circumstances. No one is going to deport, say, a 29-year-old illegal immigrant whose parents had just died in some ghastly accident and who is the sole support for a disabled younger sister and ailing granny. That’s what prosecutorial discretion is for. The Napolitano memo is nothing of the sort. It’s the unilateral creation of a new category of persons – a class of 800,000 – who, regardless of individual circumstance, are hereby exempt from current law so long as they meet certain biographic criteria.
At a hearing on Thursday, July 19, Congressmen Lamar Smith (R-Tex) and Steve King (R-Iowa) informed Secretary Napolitano that they did not accept the view that this program constituted the exercise of prosecutorial discretion.
Let me add that this program is not like that of “humanitarian parole” which is case by case, or "temporary protected status” which concerns particular countries, “deferred enforced departure” which also concerns particular countries, or presidential pardons and commutations which are case by case and are granted sparingly.
3) The Cost of Administering This Program Takes Away Resources from Lawful Federal Activities
The issue of administrative burden and cost was cited by Justice Scalia in open court on June 25 when the Arizona immigration case was handed down. The Department of Justice had made an argument against the Arizona law – a law to enforce Federal immigration law – that the state’s law interfered with federal priorities and use of scarce federal resources. The legal brief is here. Yet President Obama was now volunteering to accept the administrative burden of a program of non-enforcement for up to 1.4 million individuals.
Because of the vitriol directed at the Justice from the left, we should read Justice Scalia’s statement. In part, he said:
The government's brief asserted that “the Executive Branch’s ability to exercise discretion and set priorities is particularly important because of the need to allocate scarce enforcement resources wisely.” But there is no reason why the federal Executive's need to allocate its scarce enforcement resources should disable Arizona from devoting its resources to illegal immigration in Arizona that in its view the Federal Executive has given short shrift. Arizona asserts without contradiction and with supporting citations the following: “[I]n the last decade federal enforcement efforts have focused primarily on areas in California and Texas, leaving Arizona's border to suffer from comparative neglect. The result has been the funneling of an increasing tide of illegal border crossings into Arizona. Indeed, over the past decade, over a third of the Nation's illegal border crossings occurred in Arizona.” Must Arizona's ability to protect its borders yield to the reality that Congress has provided inadequate funding for federal enforcement-or, even worse, to the Executive's unwise targeting of that funding?
. . . It has become clear that federal enforcement priorities--in the sense of priorities based on the need to allocate so-called scarce enforcement resources--is not the problem here. After this case was argued and while it was under consideration, the Secretary of Homeland Security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants. The husbanding of scarce enforcement resources can hardly be the justification for this, since those resources will be eaten up by the considerable administrative cost of conducting the nonenforcement program, which will require as many as 1.4 million background checks and biennial rulings on requests for dispensation. The President has said that the new program is “the right thing to do” in light of Congress’s failure to pass the Administration’s proposed revision of the immigration laws. Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of federal immigration law that the President declines to enforce boggles the mind.
. . . [T]here has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A federal government that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws exclude.
So the issue is a stark one: Are the sovereign States at the mercy of the federal Executive’s refusal to enforce the Nation’s immigration laws? A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding? Imagine a provision--perhaps inserted right after Art. I, §8, cl. 4, the Naturalization Clause-which included among the enumerated powers of Congress “To establish Limitations upon Immigration that will be exclusive and that will be enforced only to the extent the President deems appropriate.” The delegates to the Grand Convention would have rushed to the exits from Independence Hall. (emphasis in original)
Let me add that, through this deferred action program, the Administration is taking resources away from administering the lawful program of reuniting families. Pursuant to law, family members have applied to enter the United States and they are waiting in line for years to come to this country to join citizens and lawful permanent residents.
4) The Policy Was Developed in Secret
One problem that I have not seen described is the development of this particular policy adopted by President Obama. The rationale for the policy in general terms is well understood: It is upsetting for young people, their families, and all of us to have young people who have never known any place other than the United States, to be deported, or to fear being deported, to a strange land. But how did the President and the Secretary proceed from this general concern to the particulars of the announced policy?
If there had been legislation on this subject, there would be public debate on each aspect of the policy. If DHS had made a public proposal in the Federal Register, there would have been public written comment and possibly public hearings. Instead of being transparent, the President and the Secretary were anything but. Not only was no debate or comment solicited, no reason is given for any particular of the policy.
Let’s look at the particulars.
The policy states that the young person must have been brought to the United States or overstayed his or her visa as of the age of 16. Why was the age 16 chosen? The policy states that it is meant to benefit individuals who brought here as children through no fault of their own. DHS does not answer the question DHS poses in its own Q&A: “Why isn’t DHS allowing other individuals to request deferred action under this process?”
It would seem that the age of 16 was selected because individuals under the age of 16, but not individuals of age 16 or 17, are subject under the law to the will of their parents. Is this the law of the states of the United States? Is this the law of the countries of origin? Given how difficult it can be for a parent to control a teenager, why is it presumed that a child of 13, 14 or 15, was as a matter of fact under control of a parent? It is also easy to conceive that a 13, 14, or 15 year old had the choice between staying with a relative, even a parent, in the country of origin or coming to the United States, and chose the latter. It would also be wrong to presume that an individual under 16 came with a parent, as opposed to some other relative or a friend or a smuggler -- or even on their own.
Moreover, this policy ignores the fact that an individual who becomes an adult under U.S. law at age 18 deliberately choose to stay in this country knowing that it was a violation of our laws.
The policy states that the individual applicant must be no older than the age of 30. Why was this age chosen? Was it not higher than 30 because there is less sympathy engendered by the deportation of someone over the age of 30? Is it because someone over 30 could fend better for him or herself if deported to the country of origin? On the other hand, why was the age not younger than 30, yet still young enough to allow the individual to finish high school and postsecondary education or training? Wouldn’t it be easier to deport a person who is under 30 and has not yet married or had children?
In fact, it is emotionally difficult to deport a person who is married and has children in this country. For one reason, many of their children were born here and are U.S. citizens. Indeed, former Speaker Newt Gingrich stated in the Republican presidential debates his thoughts that the American people would be unwilling to deport older illegal immigrants who had been here, let’s say, 20 and 30 years, and had worked here, raised children here, and had multiple community ties, such as to churches. Nothing in this Obama policy addressed Speaker Gingrich’s views. We can easily foresee that, after the November election, Obama would adopt a policy reflecting the views of Speaker Gingrich. This would leave only illegal immigrants between the ages of 30 and let’s say 60 outside an Obama deferred action. The pressure would then build to provide a presidential amnesty to this last remaining group, consisting of adults who are at their prime in earning power and who are in the middle of raising children at grade school and high school ages.
There is no minimum age stated in the policy. So, a 16 a 17 year old, as long as they meet the criteria that they are students, could apply for this deferred action in order to work. Two issues: First, what of those who have dropped out of high school? Second, if the individual is under 18, and is therefore a minor under U.S. law, will DHS require that an adult take responsibility for the minor’s application?
The policy states that the individual must have been in this country continuously for five years (except for “brief and innocent absences undertaken for humanitarian purposes”). Why not more years? Why not fewer?
Three or More “Non-Significant” Misdemeanors
The policy states that individuals who have been convicted of a felony or a “significant” misdemeanor are not eligible for this program. It defines “significant.” It also states that individuals who have been convicted of more than three non-significant misdemeanors are not eligible. Why three?
The policy states that these requirements must be satisfied as of the June 15 date the policy was adopted. Consider the plight of an individual who came to the United States two days after her 16th birthday, or who has been in the country 4 years and 360 days as of June 15, 2012, or who turned 30 two days before June 15, 2012. Where’s the compassion?
In fact, there are no bounds to President Obama’s compassion – no law constrains him. It is reported by Rep. Lamar Smith that individuals who have resided in the U.S. for less than five years have had their pending deportations cancelled.
The policy states that an individual who qualifies receives a two year grant of “deferred action.” Why not more time? Why not less time? The DHS Q&A does not answer the question the DHS itself poses:
[Q:] Why will deferred actions only be granted for two years?
[A:] Grants of deferred action will be issued in increments of two years. At the expiration of the two year period, the grant of deferred action can be renewed, pending a review of the individual case.
From the perspective of the Administration, perhaps it was thought that legislation addressing this issue might be passed within two years. From the perspective of individuals, two years is better than none. But how can individuals – who may wish to attend a four-year college, or begin a career, or marry -- plan lives with just a two-year horizon?
In fact, it’s not even for two years and it was cruel for the President to pretend otherwise. The DHS policy states that it will not begin to process applications (except for those individuals already in removal proceedings) until mid-August. The President can only make a promise that would endure to the end of his term, January 19, 2013. (This prompted reporters to ask the presumptive Republican nominee if he would retain the program.) Thus, if deferred action were granted to an individual as early as mid-August, its duration is only guaranteed for five months.
Actually, it’s even worse than that for eligible individuals! The DHS Q&A states that it can terminate the grant to an individual of deferred action at its discretion.
Also, the DHS website states that deferred action is renewable, but individuals will need to reapply not only for deferred action but also for work authorization. Work authorization is granted only upon a showing of “an economic necessity for employment.” Pray tell, what individual between the ages of 18 and 30 could not show an economic necessity for employment? Does the DHS expect a 29 year old to depend on his (illegal) parents for two years, to age 31?
5) The Program Creates a New System of “Justice” with the President as Its Dispenser
A number of commentators are referring to the Obama presidency as an imperial one. They include Kimberley A. Strassel, Wall St. Journal, July 6, 2012; Charles Krauthammer, Washington Post, July 6,; Rep. Benjamin Quayle, Washington Times, July 11. This “deferred action for young people” (as the policy is called on DHS’s website) is just another instance of this monarchical behavior.
Here is to what I would compare this deferred action program. In the 13th century, people who brought their claims before the law courts of England and were dissatisfied with the results petitioned the king for relief. Over the course of a few centuries, the king delegated the task of resolving these petitions to his Chancellor and eventually to courts of chancery. Thus, the English, and later, Americans, had two court systems: the law courts and the courts of chancery (also called courts of equity). One signal difference between the two generally known to non-lawyers is that law courts could grant damages (that is, money) but could not issue injunctions. The distinction appears in the Seventh Amendment to the U.S. Constitution that guarantees a trial by jury “in suits at common law” (over $20).
Under the President’s deferred action program, if an immigrant cannot obtain the result he or she wants from the immigration courts -- set up by our Congress who apply the strictures of the law enacted by our Congress, then he or she petitions the President, acting through the Secretary of the DHS – as his “Chancellor.” The President grants or denies the petition with unfettered discretion. If the President denies the petition, there is no right to appeal. Here is the DHS Q&A on this point:
[Q:] Can individuals appeal a denial by ICE or USCIS of their request for an exercise of prosecutorial discretion under the new process?
[A:] No. Individuals may not appeal a denial by ICE or USCIS of their request for an exercise of prosecutorial discretion. However, ICE and USCIS will develop protocols for supervisory review as part of their implementation of the new process. . .[T]here is no right for appeal. . .
On July 5, at a campaign rally in Ohio, former constitutional law lecturer, former U.S. Senator, current President, Barack Obama, declared that Obamacare, “the law I passed is here to stay.” Under our Constitution, no President passes a law. He cannot even introduce a bill in the Congress. He can ask a Member of Congress to introduce a bill. He can lobby for a bill. He can sign legislation into law. Only our Congress passes laws.
The President would be correct if he declared that “he passed” the deferred action program into some form of law. He would, however, be constitutionally wrong for having done so.
Spero columnist James Thunder practices law in the Washington DC area.