Executive Power and Immigration Reform

Benjamin Wittes
Monday, November 17, 2014, 11:33 PM
The current flap about President Obama's plan to proceed without Congress on immigration matters isn't really about national security law. But it is about the law of presidential power and thus of inherent interest to readers of this site.

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The current flap about President Obama's plan to proceed without Congress on immigration matters isn't really about national security law. But it is about the law of presidential power and thus of inherent interest to readers of this site. Over the past few weeks, I've been struck in reading the many news stories about the brewing confrontation by the fact that none of the stories addresses what seems to me the central question at the heart of the developing standoff between the President and Congress: How much discretion does Obama have under the Immigration and Naturalization Act to decline, as a matter of policy, to deport millions of people? Republicans are tossing around all sorts of rhetoric about Obama's decision to proceed unilaterally. John Boehner has floated the idea of litigating the matter. Some Republicans have described such an "amnesty" as a constitutional crisis. Some have even talked about impeachment. All of that assumes, of course, that the coming action is illegal, that the statute itself doesn't give Obama authority to decide to stay his hand with respect to lots of deportations. Yet I have seen no news story or legal analysis that contains an actual argument to that effect. We do not yet know exactly what President Obama intends to do, so we cannot hold the details of his coming executive action up against the statute. But if we are to believe news reports, he plans to create some kind of program under which undocumented aliens who meet certain criteria---family members in the United States, no criminal record, etc.---can come forward and receive what amounts to a quasi-legal status under which authorities will not pursue removal actions against them. Obama himself has sown doubt about this own authority to effectuate this policy outcome without congressional involvement---stating in the past that he would love to do it, but did not think he had the legal authority. But at least as I read the relevant provisions of the Immigration and Naturalization Act, the statute actually gives him wide discretion to decline to deport non-criminal aliens who are legally deportable. Specifically, it contains no directive requiring the administration to pursue garden variety deportation cases. In fact, it has very little to say at all---except with respect to aliens who have committed crimes---about what happens if the President just doesn't feel like deporting people. That silence seems to me to convey the authority not to act, both in the case of an individual whose circumstances authorities find compelling and also in the case of five million people whose circumstances authorities find compelling or whose status authorities choose for policy reasons to regularize. Let's go through the statute. The key legal requirement appears in 8 U.S.C. § 1227(a): "Any alien . . . in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens." What follows is a long list of legal bases for deportation, but for present purposes, what matters is the language of this general command. It appears, on first glance, to be mandatory. The alien, after all, shall be removed. But look again. The mandatory language only applies "upon the order of the Attorney General." And the statute makes no demand that the attorney general issue such an order merely because an alien falls into one of the categories of deportability. The statute, in other words, requires that an alien be removed if he is within a deportable class and if the attorney general orders him removed. As a practical matter, the attorney general does not decide these things himself. There's a whole immigration adjudication system to decide these cases for him (subject to his ultimate review). And the statute lays out a whole framework for immigration adjudications, all based on the assumption that the government wants to deport a given individual. Thus, 8 U.S.C. § 1229, begins by requiring that the alien receive written notice of the case against him or her. And 8 U.S.C. § 1229a lays out all sorts of details surrounding the conduct of the proceedings that follow. But what do these provisions---the first of which is entitled "Initiation of removal proceedings"---say about the obligation of authorities to, well, initiate removal proceedings? Exactly nothing. They simply assume that the immigration authorities want the person in question removed from the country. Nothing in either provision requires that authorities do, in fact, want him or her removed or start a case against him or her. And nothing that I can see forbids the president from directing that his underlings stay their hands in initiating removal proceedings, either in individual cases or in whole classes of cases. In the immigration context, Congress certainly knows how to remove discretion from the attorney general. In 8 U.S.C. § 1226(c), for example, the legislature bluntly directs that "The Attorney General shall take into custody any alien" who has committed certain classes of crimes pending deportation. A provision that follows mandates the detention of suspected alien terrorists. And 8 U.S.C. § 1231 directs that "when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days." During that time, authorities "shall detain the alien. Under no circumstance during the removal period shall [they] release an alien who has been found inadmissible . . . or . . . deportable." So one has to assume that the silence as to any sort of requirement that the government initiate deportation proceedings against non-criminal aliens is not an accident. It is a grant of discretion of sorts. To be sure, it was probably a grant of discretion predicated on the assumption that presidents would want to remove deportable aliens from the country. The idea that a president would build a whole programmatic policy edifice out of the discretion that resides in this silence surely never crossed anyone's mind. That said, I can't see any legal impediment to President Obama's anticipated course of action. I am no immigration law expert, so that fact may not mean all that much. If some reader out there who has studied the statute has a theory as to why the President lacks discretion to decline to initiate five million removal actions, I'd love to hear it. In the meantime, my gut is that whatever the policy merits of what the President has in mind, he seems to have broad authority to do something pretty dramatic.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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