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08/26/2012

Suit Filed Against the President's No-Deportation Policy (UPDATED)
Michael Ramsey

A group of immigration agents have filed suit against President Obama's policy not to deport illegal aliens who came to the United States as children -- story here.  Assuming the court gets to the merits (a big assumption), this could be a big separation of powers case.  As discussed a while ago, it's not clear how the President has constitutional power to adopt the policy, which looks a lot like a change in law that should come from the legislative branch, not the exeuctive.

At the time the President adopted the policy, there was speculation that it could be justified under the President's executive power of prosecutorial discretion.  I was skeptical then, and am more skeptical now that I've thought about it.  The key, I think, is that the President's policy is not merely not to prosecute, but to treat the category of people in question as (temporarily) entitled to remain in the United States.  As the news report states:

Last week, the Homeland Security Department began taking applications from those no older than 30 who came to the U.S. as children and who have kept at least fairly clean criminal records. They are being granted "deferred action," which is an official notice that they are not to be deported and will be granted work permits to stay and get jobs legally in the U.S.

That sounds like a change in legal status -- a legislative act.

Of course, the relevant statute may grant the President discretion to allow certain persons to remain in the United States, and (non-delegation issues aside) that would solve the problem.  My guess is that if the administration ultimately defends the policy on the merits in court, that will be its argument.  (Unfortunately, as the separation of powers argument is much more interesting).

UPDATE:  Matthew Ing writes to point out that the Congressional Research Service issued a memorandum on the subject (before the suit was filed): Analysis of June 15, 2012 DHS Memorandum, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children.  Among other things, the memorandum -- consistent with the observations above -- finds authority to issue work permits in the relevant federal statutes.  It is somewhat less clear on whether the decision not to deport should be understood to rest on constitutional executive power alone or a combination of executive power and statutory delegation.