Obama’s immigration authority defense by Department of Justice is one big contradiction
In his remarks to the nation, President Barack Obama articulated the specifics of his proposal:
If you’ve been in America for more than five years; if you have children who are American citizens or legal residents; if you register, pass a criminal background check and you’re willing to pay your fair share of taxes….[W]e’re not going to deport you.
Immigration reform is one of the more contentious policy issues facing the United States, but the most significant issue with Obama’s executive actions has much less to do with policy preferences than it does with the scope of presidential power. Opponents of the president’s actions argue that he is acting well outside of this constitutional authority, while President Obama argues that he is acting in a manner consistent with the responsibilities of the executive branch.
President Obama called upon the Office of Legal Counsel within the Department of Justice (DOJ) to offer the legal basis for his deferred action for undocumented immigrants. Unfortunately, the 33-page DOJ memorandum creates even more questions about the president’s authority and the nature of the non-enforcement proposal itself.
The memorandum correctly articulates a conventional understanding of prosecutorial discretion as a case-by-case enforcement decision regarding an individual. The problem for the DOJ is that the president publicly highlighted his action as a blanket non-enforcement policy.
DOJ attorneys are well aware of the distinction between prosecutorial discretion and the president’s broad modification of immigration law. As a result, the DOJ’s guidance characterizes the president’s promise of deferred action in a completely different manner than the proposal presented by the president himself. The DOJ memorandum notes, “the proposed policy provides a general framework for exercising enforcement discretion in individual cases, rather than establishing an absolute, inflexible policy of not enforcing the immigration laws in certain categories of cases.”
In his national address, President Obama clearly stated the conditions under which broad categories of undocumented aliens would not be deported. The DOJ simultaneously argues that there is no “inflexible prioritization policy.” The two positions seem to be in direct contradiction with each other.
The DOJ recognizes that if the president’s executive actions on immigration are successfully characterized as “not enforcing the immigration laws in certain categories of cases,” they could be challenged as attempts to rewrite the immigration laws or avoid statutory responsibilities to enforce them.
While President Obama and many Americans may feel strongly about changing federal immigration law, the president does not have the ability to make categorical changes without Congress. More importantly, the president should not present one plan to the American people on national television as his lawyers prepare another one hoping to survive legal challenges.