Does the President Have the Authority for Immigration Executive Action?

Posted by Matthew Green | Nov 19, 2014 | 0 Comments

All signs point to a coming announcement from the White House on immigration reform.  This Friday may be the day that millions have been waiting for, to get some form of relief from the ever present threat of deportation.  However, as the president is set to act, opponents are arguing that such an expansive executive action would be illegal, and exceeds the president's Constitutional authority.

President Obama will be coming to Las Vegas this Friday, November 21st, in what will likely be his announcement of immigration reform.  While the White House has not commented on whether the Las Vegas trip will be the setting for an immigration reform speech, it has been the setting for past announcements.  In January 2013, Obama gave a speech on comprehensive immigration reform speech from Del Sol High School in Las Vegas, Nevada.

The White House has announced, “the President is nearing a final decision on this.”  Meanwhile, Republicans have continued to speak out against any unilateral executive action on immigration reform.  The rhetoric does not appear to have deterred Obama from his plans, and now Republicans are looking forward to see what they can do to stop the reforms from being implemented.

A spokesman for the Republican House Speaker from Ohio, John Boehner, said, “if ‘Emperor Obama' ignores the American people and announces an amnesty plan that he himself has said over and over again exceeds his Constitutional authority, he will cement his legacy of lawlessness and ruin the chances for Congressional action on this issue, and many others.”

The reference to Obama's admitted concern over whether deferral exceeded his authority came from earlier admissions that doing so may be ignoring the law.  In a 2013 Telemundo interview, when questioned whether the president would expand deportation deferrals, Obama said that doing so would be difficult to defend legally, and would not be an option.  However, Obama and a number of other legal experts believe the executive office does have such authority.

In a September 2014 letter to the White House, 136 U.S. law professors agreed that the president has the authority to make immigration enforcement policy changes through executive action.  The professors represented universities from 32 states, Washington D.C., and Puerto Rico.  The letter did not take a position on what the immigration reforms should be, only that their position is that the executive branch does have the legal authority to issue an executive order to protect individuals or groups from deportation through prosecutorial discretion.

There is historic precedent for executive action on immigration.  In 2012, the president implemented the Deferred Action on Childhood Arrivals (DACA) policy, which deferred deportation to young immigrants across the country. In 1986, Republican President Ronald Reagan and Congress gave legal status to millions of immigrants, and a year later, through executive action, Reagan extended amnesty to the children of those given legal status.  Later, in 1989, George H. W. Bush acted to extend protection to over a million more unauthorized immigrants.

Hiroshi Motomura, a law professor at UCLA, believes the president has the legal authority.  “He cannot change the rules for granting permanent resident status or putting noncitizens on a path to citizenship, but he has the legal authority to set priorities for enforcement,” said Motomura.  Such priorities may include “temporary reprieves to a significant number of unauthorized migrants.”

About the Author

Matthew Green

Managing Attorney. The Law Offices of Matthew H. Green focuses on the aggressive defense of immigrants. A native of Arizona, Mr. Green understands the difficulties that immigrants and families of immigrants face when a loved one is charged with a crime. He knows how frightening it can be for some...

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