Why Executive Action on Immigration?
On Thursday, the President took Executive Action on immigration that, according to the United States Citizenship and Immigration Services (USCIS), calls for:
1) Expanding the population eligible for the Deferred Action for Childhood Arrivals (DACA) program to young people who came to this country before turning 16 years old and have been present since January 1, 2010, and extending the period of DACA and work authorization from two years to three years
2) Allowing parents of U.S. citizens and lawful permanent residents who have been present in the country since January 1, 2010, to request deferred action and employment authorization for three years, in a new Deferred Action for Parental Accountability program, provided they pass required background checks.
3) Expanding the use of provisional waivers of unlawful presence to include the spouses and sons and daughters of lawful permanent residents and the sons and daughters of U.S. citizens.
4) Modernizing, improving and clarifying immigrant and nonimmigrant programs to grow our economy and create jobs.
5) Promoting citizenship education and public awareness for lawful permanent residents and providing an option for naturalization applicants to use credit cards to pay the application fee.
From what I can see, the President has three legitimate reasons for initiating this Executive Action.
Budgetary constraints preclude the enforcement of federal law. Public administrators have to make judgments about the most efficient use of resources in an environment where scarcity is the norm. All enforcement measures can’t be taken, and all cases can’t go to trial. Deportation deferrals are a reflection of reasonable and permissible enforcement priorities on immigration.
Part of the policy in the action is known technically as “deferred enforced departure” (DED). Those who are granted DED have a “quasi-legal” status. It covers some but not all of the 5 million whose status is in question, and carries work authorization. Previous presidents have granted DED on a class-wide basis on numerous occasions.
Prosecutorial discretion is one of the president’s affirmative authorities and is rooted in the text of the Constitution. While its primary sphere of operation is in criminal law, there is no precedent that says it can’t be applied in civil law.
In Heckler v. Chaney, 470 U.S. 821 (1985) the Supreme Court ruled that an executive’s choice of inaction, even if unconstitutional, is outside of the court’s reach. Additionally, the court stated they would only reserve judgment on the category of non-enforcement decisions that were so sweeping that they amounted to an abdication of the executive’s responsibilities. I don’t see how a prioritization of enforcement policy by the executive can amount to abdication of responsibility though I am sure a credible argument will be made eventually.