Was Obama’s move on immigration legal? Lawyers' memo makes the case

A memo by six immigration lawyers, written more than a year ago, argues that historical precedent supported Obama's authority to take action. Critics decry an effort to circumvent Congress.

President Obama’s decree to allow certain illegal immigrants to remain in the United States follows broad historical precedent, according to a memo prepared by proponents of the president’s move.

While conservative critics allege that Mr. Obama’s executive action Friday impinges on congressional authority, they also allow that the president does have significant leeway to make such changes.

Written by six immigration lawyers, the April 2011 report details the rationale for the maneuver according to those who had been pressuring the White House to take such a step in meetings and briefings over the past year.

“The question has been, ‘Did [the president] have the legal authority?’ ” Sen. Bob Menendez (D) of New Jersey told reporters on Friday. “Could he ultimately produce an administrative relief that could be sustainable? I and others gave him examples of those administration reliefs that other presidents, Democrats and Republicans, had, and I’m glad to see that he has come to this conclusion.”

Obama's policies would allow certain illegal immigrants a renewable two-year deferral from deportation and make them eligible to apply for work authorization. Those affected are individuals who were less than 16 years old when they were brought to the US but are now under age 30; have lived in the US for at least five continuous years; are in school or have graduated from high school or are serving in the military; and have not been convicted of a felony or a significant misdemeanor.

The Department of Homeland Security estimates that this change would affect 800,000 people.

The immigration lawyers’ memo argues that expressing discretion about who gets prosecuted under federal law is in fact common across the US; that once prosecuting objectives are set, the executive branch has the authority to grant “deferred action” under a wide array of circumstances; and finally that prior administrations have used a variety of provisions to achieve similar policy objectives.

“Our nation’s immigration laws must be enforced in a firm and sensible manner,” said DHS Secretary Janet Napolitano in a statement accompanying the president’s decision. “But they are not designed to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language. Discretion, which is used in so many other areas, is especially justified here.”

Choosing whom to prosecute is something immigration officials and police departments do all over the United States every day, the memo argues.

As such, directing that judgment “is not contrary to current law,” the memo reads, “but rather a matter of the extension and application of current law to contemporary national needs, values and priorities.”

This piece of the argument is particularly important to fend off criticism that DHS has decided to stop enforcing the nation’s deportation laws – they’re being enforced, the president’s backers can argue, but the authorities are focusing on criminals and other more important cases first.

Next, the memo posits that DHS already allows certain individuals to stay in the US under a designation known as deferred action that has few restrictions: It’s currently outlined as a process driven by “the discretion of the agency or at the request of the alien, rather than an application process.”

By granting deferred action waivers to particular groups of people – noncitizen widows or widowers of US citizens who were unable to gain American citizenship due to the death of their spouses, or applicants for visas under the Violence Against Women Act, for two relevant examples – the executive branch had established precedent for granting deferred action to defined groups of individuals, according to the memo.

Finally, the immigration lawyers argue that action under various other policies brought hundreds of thousands of Cubans into the country, say, or allowed presidents to permit some Chinese nationals to remain in the US after the Tiananmen Square protests in 1989.

In total, then, Obama’s decision is not an executive overreach, according to this view, but rather an expansion of a policy to a large number of people.

But to the law’s critics, size and scope matter. 

“What’s the purpose of having discretion? The purpose is so that a person enforcing the law can make exceptions to the rule. This is a good thing,” says Matthew Spalding, vice president of American studies at the conservative Heritage Foundation. “However, if you use discretion so broadly in a way that you state, ‘Here’s our new policy,’ at some point that discretion becomes a new law. In a broader sense, that is what’s going on.”

The president’s critics also argue that unlike President Bush, who simply didn’t prioritize the deportation of young illegal immigrants, Obama has instead created a special category of protected individuals. In doing so, they say, he flouts congressional authority.

“Here the administration is implementing a categorical policy not to enforce federal law, which dictates deportation for illegal [immigrants] regardless of their age. Congress has refused to pass such laws and this is an obvious effort to circumvent Congress – something of a signature for this administration,” writes Jonathan Turley, a law professor at George Washington University in Washington, in an analysis.

Rep. Steve King (R) of Iowa, a hardliner on immigration policy, plans to challenge the administration’s move in court, according to several news reports.

Still, Professor Turley says that while the Obama administration has dodged Congress in a dubious fashion, a legal challenge will be hard-pressed to succeed.

“Presidents are given extreme deference in decisions on the enforcement of federal laws,” he writes. “It would be difficult for anyone to challenge this policy for that reason.”

Heritage’s Mr. Spalding said pinpointing illegality would be a challenge.

“As a technical matter, it does get murkier. In this area, as in a lot of other areas, there is enforcement discretion. Think about the guy who pulls you over for a ticket. Sometimes you get a ticket, sometimes you get a warning,” Spalding says.

“I can’t sit here right now and tell you here is the word by which he violated the law as a technical matter,” he continues. “Congress writes these massive laws that are very broad that you could drive a bus through ‘em. And it just happens that’s what President Obama is doing – driving a bus through them.”