136 Immigration Law Experts Confirm President’s Executive Action is Constitutional

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By Emily Neumann and Rahul Reddy

Over 130 scholars and teachers of immigration law transmitted a letter to Congress in which they conclude that the President’s executive actions, including the expansion of DACA and establishment of DAPA, are legal exercises of “prosecutorial discretion.” Citing federal statutes, regulations, and historical precedent, the 136 law professors stated that the programs are within the legal authority of the executive branch of the U.S. government. Several former General and Chief Counsels of INS and USCIS also wrote a letter affirming the legal analysis and conclusions of the law professors.

Prosecutorial discretion refers to the authority of the Department of Homeland Security to decide how the immigration laws should be applied. When Congress enacted the Immigration and Nationality Act, it specified that the Secretary of Homeland Security would be responsible for the administration and enforcement of laws relating to the immigration and naturalization of aliens. While Congress created the law, it recognized that the executive branch would have authority to administer and enforce it.

In deciding how to enforce laws relating to immigration, and those in practically every law enforcement context, the agencies responsible for executing those laws recognize that there are never enough resources to result in 100% enforcement. Choices must be made in determining where to apply resources in order to achieve the highest level of compliance consistent with the overall goal of the law. Just as a police officer has discretion to refrain from issuing a traffic ticket based on various factors, in immigration enforcement, prosecutorial discretion is used to determine enforcement priorities and refrain from acting on low-priority cases.

Various sources suggest that the Department of Homeland Security budget provided for by Congress allows for the deportation of up to about 400,000 individuals each year. With an undocumented population of approximately 11 million, simple math would lead to the conclusion that it would take over 25 years to deport every undocumented individual. Since the Department of Homeland Security was given the authority to administer laws relating to immigration, the President has directed the Department to set priorities for which of the 11 million people should be deported first. In the meantime, those that are low on the list of priorities and who come forward to register with the government, undergo background checks, and meet certain criteria, will be offered a discretionary remedy of deferred action. In other words, the agency will temporarily refrain from enforcement for those individuals.

Furthermore, in the Immigration and Nationality Act, Congress provided that the Secretary of Homeland Security had the power to authorize employment for aliens. In reliance on this power, the Department of Homeland Security previously promulgated regulations listing the various categories of aliens who can apply for and receive employment authorization. Based on this authority, the President has directed the Department to allow for those given deferred action to receive employment authorization as well.

While the statute provides the basis for the executive actions taken by the President, critics suggest that the large number of individuals who could ultimately benefit signals that the plan is overreaching. Although past Presidents have used the same authority to provide immigration benefits to various groups, those were much smaller in scale. In opposition to the executive actions of the President, the House Judiciary Committee recently held a hearing in which 3 of the 4 witnesses testified that they believe that the President has exceeded his authority and violated the Constitution. As the President’s plan to provide temporary relief to some is slowly implemented, permanent reform through Congress would be the best way to settle the debate on the reach of his executive authority.

Emily Neumann and Rahul Reddy are partners in Reddy & Neumann, P.C. in Houston and Dallas. Since 1997, the firm has focused exclusively on immigration law, representing both employers and immigrants.

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