In June 2012, President Obama announced the Deferred Action for Childhood Arrivals immigration program, which defers removal against an individual for a two-year period. The government takes the position that beneficiaries of DACA are lawfully present, even though not in lawful status, because the program itself authorizes the individual to remain in the United States through a form of prosecutorial discretion. Beneficiaries of the program are eligible for work authorization and may seek travel authorization as well. According to media reports, the president is considering taking action before the end of this year similar to DACA, but on a larger scale.
While most would agree that the president has significant discretion in executing the immigration laws, including, but not limited to, paroling people into the U.S., and certainly granting deferred action on a case-by-case basis, critics argue that the type of broad action embodied in the DACA program unconstitutionally impedes upon congressional authority. The federal courts have consistently held that Congress has exclusive jurisdiction over immigration. The president, in turn, is constitutionally bound to faithfully execute the laws. Critics believe that DACA is simply a means to shield a select group of people from removal, and the program only provides for group eligibility determinations rather than traditionally individualized determinations on a case-by-case basis.
Supporters respond that each DACA application is individually adjudicated, in comport with long-standing determinations of deferred action. Moreover, because the president has limited resources appropriated by Congress to execute the immigration laws, an area that clearly touches upon foreign relations and national security, he may use large-scale prosecutorial discretion to manage those limited resources, while simultaneously protecting individuals with no lawful status who are residing in and seemingly contributing to the United States in meaningful ways.
In a 1952 Supreme Court decision, Youngstown Sheet & Tube Co., Justice Robert Jackson, in a concurring opinion, proposed a framework to evaluate the exercise of presidential powers. First, when the president acts pursuant to congressional authorization and his own constitutional authority, the president's authority is at its highest. Second, when the president acts in absence of congressional action, he can rely only upon his own powers, but there is an unknown zone of twilight where he and Congress may have concurrent authority, or where the president's authority is simply unclear. Third, when the president's actions are incompatible with the will of Congress, his power is at its lowest ebb; in this situation, the president can rely only upon his own constitutional authority minus any congressional authority.
In granting large-scale reprieves to people without lawful status in the U.S., is the president acting pursuant to congressional authority, where his power is at its peak, or is the president acting contrary to congressional authority, where his power is at its lowest? Or is the president acting in the absence of any congressional action?
With clear congressional authorization for the executive branch to grant aliens admission into the U.S., and also to remove them, it would be difficult to argue that there is an absence of congressional action here. It is less difficult, but difficult nonetheless, to argue that the president is acting pursuant to congressional authorization when he acts on a broad scale to grant deferred action to a group of people. For example, Congress may appropriate more money for immigration enforcement next year, but the DACA program would still prohibit government officials from removing its beneficiaries. Moreover, implementing the DACA program itself requires refocusing, if not subverting, resources that would otherwise go elsewhere in the immigration scheme.
Nevertheless, the courts have generally recognized that the president has discretion in executing the law. The question is: How far does that discretion extend? If the express will of Congress is for immigration authorities to remove people unlawfully present from the U.S., with some noted exceptions, it is not necessarily true that because Congress has not allocated enough money to remove every unlawfully-present individual this very year that we may assume that Congress has authorized the president to exercise large-scale reprieves on a rolling basis. To the contrary, critics might argue that it is probably safer to assume that Congress expects ICE to do what it can this year and then to do what it can next year and so on.
We believe the president has no authority to ignore a congressional statute simply because he disagrees with the policy or because doing so is politically advantageous. Many legal scholars argue the DACA program is within the president's discretionary authority. However, some scholars contend that it will become more difficult to defend the president from charges his actions are contrary to congressional will if he asserts even greater discretion through broad scale executive action later this year. Certainly, the scope of his actions taken together will be a critical component in deciding this issue.
Executive action is temporary, subject to constitutional limitations, and cannot fully address all the policy implications related to immigration. We hope that our forthcoming book, A Conservative and Compassionate Approach to Immigration Reform, will explain why congressional action on a comprehensive basis is a better approach. We do not believe that the U.S. has a broken immigration system, as many have asserted. This, however, is not to say that we, as a nation, cannot improve. We can improve, and we should.
The starting point to improving the U.S. immigration system is enforcement. This enforcement includes border enforcement, interior enforcement, and workplace enforcement, and, importantly, it also includes enforcement of the country's immigration laws. When people know that the U.S. strictly enforces its immigration laws, that knowledge itself can sometimes be more effective than a 3,000-mile fence that people can climb over, break through, dig under, or go around. Certainly, some people will still try to enter surreptitiously, but our agents at the border can work more effectively when the numbers are fewer.
We believe that there should be no more free passes for visa overstayers or short-term immigration violators, and we have proposed a new ground of inadmissibility to combat this rampant problem. A pathway to nationality (something less than citizenship) might be a better policy than a pathway to citizenship. Additionally, practical economic considerations warrant exploring some type of temporary-worker status for those who qualify rather than attempting a mass deportation of millions of workers, which would devastate certain American industries.
Finally, we have proposed that Congress update the Immigration and Nationality Act to address today's immigration challenges. We believe that some of the permanent bar provisions are overly harsh and contribute to unlawful immigration. These bars should be eliminated. Renewing and revising some already existing provisions of the act, such as the 245(i) provision that allows for adjustment of status in the United States and the 249 provision that allows certain longtime residents to register their status, and using the foundation of the laws that we already have, rather than enacting brand new schemes, should be our first approach to tackling immigration reform. We believe our proposals are not only conservative and compassionate, but are also grounded in common sense.
Alberto R. Gonzales is a former counsel to the president and a former attorney general in the George W. Bush administration. He is currently the dean of the Belmont University College of Law, where he holds the Doyle Rogers Distinguished Chair of Law. David N. Strange is a partner and senior immigration attorney at Whittenburg Strange & Walker, P.C. He is board-certified in immigration and nationality law by the Texas Board of Legal Specialization, and he is currently pursuing an LL.M. at the Georgetown University Law Center.