USA Today
By Alan Gomez
March 23, 2014
MIAMI
— President Obama's recent order to his administration to find ways to
deport people living in the United States illegally "more humanely" has
both sides of the
immigration debate wondering eagerly what he means by that.
Advocates
for undocumented immigrants hope it means that the Department of
Homeland Security will finally decide to end all deportations, and
opponents of Obama's immigration
polices hope it does not.
Both
sides say the law is on their side: Proponents claim Obama has every
right to order a backing-away from enforcing deportation laws and
opponents say he is violating
his oath of office if he does.
"The
Department of Homeland Security has a pretty broad range of authority
to decide which individuals will be removed from the country or not,"
says Marielena Hincapié,
executive director of the National Immigration Law Center, which
advocates on behalf of legal and undocumented immigrants.
"The administration is on solid legal footing ... and can still go much further."
Ira
Mehlman of the Federation for American Immigration Reform, which seeks
lower levels of legal and illegal immigration, says doing so violates
Obama's oath to "preserve,
protect and defend" the Constitution.
"If
he can simply decide, 'Congress can pass any law that it wants and I'm
going to ignore the ones I don't like and create the ones I want,' then
this is not just an
immigration issue," Mehlman says. "This ends up becoming a
constitutional issue, and it's precisely what the founding fathers
sought to avert."
When
the president decides, it is likely to reignite a debate going on in
Congress and making its way through federal courts about the limits of
presidential power that
goes back decades.
At first glance, the debate seems pretty clear.
In
1954, the U.S. Supreme Court ruled in Galvan v. Press that the power to
create immigration policy is "entrusted exclusively to the Congress."
However, in 2002, when
Congress created the Department of Homeland Security, it delegated to
the department's secretary the power to establish "national immigration
policies and priorities."
Obama has already alluded to that congressional mandate when establishing orders and policies for immigration enforcement.
In
2011, John Morton, then Obama's director of Immigration and Customs
Enforcement, issued a memo laying out a set of principles his agents
should follow when determining
who to deport.
In
what is known as "The Morton Memo," agents were told to focus
deportation efforts on certain undocumented immigrants, such as those
with extensive criminal records
or those deemed threats to national security.
In
2012, the president went a step further, creating the Deferred Actions for Childhood Arrivals program. That allowed undocumented immigrants
brought to the country as
children to apply to the federal government to have their deportations
delayed for two years. So far, more than 520,000 people have been
approved.
Obama
continued in 2013, granting deportation protections to the direct
relatives of U.S. servicemembers and to parents with minor children.
Immigrant
advocates such as Hincapié say Obama has unquestionably carried out the
immigration enforcement goals approved by Congress, as evidenced by the
roughly 400,000
people he deports each year. His moves to protect some segments of the
undocumented population is merely his way of targeting the right people
to deport, they say.
Many
critics of the administration say any president has the right to
exercise "prosecutorial discretion," directing federal law enforcement
officers and government attorneys
to focus efforts on certain types of crimes and criminals.
But
Mehlman and others say a president exceeds his legal authority when he
exempts broad classes of people here illegally from federal deportation
laws.
That
legal argument led a group of agents for the U.S. Immigration and
Custom Enforcement agency, the interior enforcement arm of DHS, to sue
the Obama administration.
They claim the White House put them in an impossible bind because as
agents they are required by law to deport people they encounter who were
in the country illegally, but their superiors are telling them not to
based on the principles laid out by Homeland
Security leadership.
Whether
that is a sound legal position has to to be decided. U.S. District
Judge Reed O'Connor dismissed the lawsuit last year but only because it
had been filed in the
wrong jurisdiction. He said in his ruling he agreed that the agents had
a strong case.
"The
Court concluded that plaintiffs were likely to succeed on the merits of
their claim that the Department of Homeland Security has implemented a
program contrary to
congressional mandate," O'Connor wrote in July.
The case is under appeal.
Some
politicians who oppose Obama's exemptions of whole classes of
undocumented immigrants from the law have agreed that past presidents
had the right to exercise "prosecutorial
discretion" in immigration cases.
In
1999, 14 Republicans signed a letter calling on the attorney general
and commissioner of the Immigration and Naturalization Service to use
"prosecutorial discretion"
and not act on cases that had come to their attention of legal permanent residents who were deported for committing a single low-level
crime years ago.
The
letter-signers said prosecutorial discretion was a "well established"
principle that should be used to stop the deportations they described as
"unfair and resulted
in unjustifiable hardship."
Signers
of the letter included Rep. Lamar Smith, R-Texas, and Rep. James
Sensenbrenner, R-Wis., co-sponsors of the ENFORCE Act passed by the
House that would let Congress
sue the executive branch for failing to enforce laws.
Smith disagreed that the letter indicates he agreed with Obama's position in the past.
"This
stands in stark contrast to the president's actions that go beyond the
bounds of our immigration laws by exempting broad categories of illegal
immigrants from enforcement
by executive fiat," he said.
The
Department of Homeland Security is conducting a system-wide review of
the way it enforces immigration laws per Obama's directive last week.
But it is something that
has been on the president's mind for a while.
"I
am the head of the executive branch of government. I'm required to
follow the law. And that's what we've done," Obama told Univision last
year. "But what I've also
said is, let's make sure that we're applying the law in a way that
takes into account people's humanity."
For more information, go to: www.beverlyhillsimmigrationlaw.com
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