Rumors are twirling that President Obama will soon announce his plans for reshaping the immigration law regime through use of his extensive executive authority. The president and high-level administration officials have repeatedly stated that such an announcement will be made before the end of the year, but recent news reports suggest it might happen as early as this week.
Much has been written about the extent of the president’s legal authority, including some very well reasoned legal analyses by top-notch scholars. Stephen Legomsky, the former chief counsel at the U.S. Citizenship and Immigration Services unit of DHS, put together a legal memo about deferred action dominated by citations to legal authorities of all types—statutes, regulations, judicial decisions, and more.
Advocates have engaged in similar efforts. The Immigration Policy Center, for example, compiled a very useful list of background pieces discussing executive action and prosecutorial discretion. One of the most interesting documents IPC includes is a detailed review of executive grants of temporary immigration law enforcement relief from 1956 to the present.
I have no need to recreate that wheel. I do, however, want to highlight one important piece of presidential power: prosecutions. As the head of the federal government’s Executive Branch, the president is charged with enforcing federal laws, including civil and criminal immigration laws. Despite the constant refrain from rightwing pundits and politicians, no serious observer contends that the Obama Administration is failing to vigorously enforce immigration laws. Under President Obama, the federal government has spent more money, detained more people, and removed or returned more people than at almost any other time in the nation’s history. I find this highly problematic morally, but my disagreement with the president’s policy choices doesn’t mean I can pretend the effects aren’t real as Republicans and other immigration restrictionists frequently do.
At the same time, there are many millions more people in the United States in violation of immigration law than DHS can identify, detain, and remove. This is true of every law enforcement agency in the country regardless of the politics of their tasks or the type of law they are charged with enforcing. The fact of the matter is that law enforcement agencies perennially lack the resources to fully target every potential lawbreaker. Moreover, there are other reasons that law enforcement agents don’t target everyone. Some are perfectly sound—it doesn’t make much sense to devote every police department’s resources to capture everyone driving one mile per hour over the posted speed limit even though they would have every legal basis to do so. Other reasons are much harder to justify—a prosecutor who refuses to bring a criminal charge because the defendant has a high-powered parent, for example. Though these examples are on different ends of the justifiability spectrum, they are indistinguishable as a matter of law. Neither police officers nor prosecutors are required to pursue every possible instance of a legal violation. And neither would have the money to do so if they wanted to.
The same is true of immigration law enforcement. As the debate about executive action picks up, therefore, it’s worth listening to Shoba Sivaprasad Wadhia summarize the many legal basis for exercising prosecutorial discretion regarding immigration law.
This video is part of the excellent LegalEDweb project led by Michelle Pistone.
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