BY TAYLOR SCHMALTZ — Is the immigration system broken? President Obama seems to think so. On November 20, 2014, President Obama announced an executive action that would sharply divide the people, the lawmakers, and the courts of this nation. The executive action was set to take effect on February 18, 2015, but its implementation by United States Citizenship and Immigration Services (“USCIS”), part of the Department of Homeland Security (“DHS”), has been delayed by an impending legal battle. Before discussing the claims of both sides in this debate, it is important to understand the purpose and effect of the action.
The executive action is more comprehensive than what the media and courts have focused on. The action called for a increased focus on illegal immigration at the border and for Immigration and Customs Enforcement (“ICE”) to focus its efforts on deporting illegal immigrants committing crimes, not those otherwise abiding by the law. However, a topic of much debate is the expansion of the Deferred Action for Childhood Arrivals program (“DACA”) and the creation of the Deferred Action for Parent Accountability program (“DAPA”). These programs prevent the deportation of those who qualify under the programs’ strict requirements and allow applicants to obtain work authorization. These individuals are not granted any further benefits and they do not have the ability to adjust their immigration status based solely on acceptance into the programs. The number of people who would qualify for these programs is estimated to be up to 5 million.
Greg Abbott, Governor of Texas, filed a legal challenge to the executive action in the U.S. District Court for the Southern District of Texas. This lawsuit is currently joined by twenty-five other states. The lawsuit raises two major arguments against the implementation of the action. First, and most importantly, the lawsuit challenges the President’s constitutional power to implement such an action. The suit alleges that President Obama violated the Take Care Clause of the U.S. Constitution, which limits the scope of executive power. The suit reiterates the principle that the President has the power to enforce the law, not to make the law—a principle that is at the core of the separation of powers in the federal government. Second, the lawsuit argues that the action will only worsen the budget crisis at the southern border of the United States—increasing the need for health care, law enforcement, and education—without an increase in funding.
On February 16, 2015, two days prior to the implementation of the executive action, U.S. District Judge Andrew S. Hanen issued a preliminary injunction against both the expansion of DACA and the implementation of DAPA while the lawsuit makes its way up to the high court. The Department of Justice (“DOJ”) has filed an emergency motion for a stay of Justice Hanen’s decision pending appeal. The DOJ argues that the stay is necessary so that the Department of Homeland Security “is able to most effectively protect national security, public safety, and the integrity of the border.” As an alternative, the DOJ requested a narrower stay, so that the preliminary injunction only suspends implementation of the action in Texas.
As the battle over the executive action began garnering more attention, there was a real possibility of a shutdown of the Department of Homeland Security, which was in danger of losing its funding. Unsurprisingly, the issue was generally split down partisan lines with Democrats backing the Obama administration and Republicans arguing that President Obama had overstepped his bounds. Some Republicans in Congress view this funding bill as an opportunity to voice their discontent with the executive action. However, Congress was able to pass a funding bill with just hours left until shutdown.
With so many controversies surrounding the lawsuit, before one can even consider what the courts will decide, one must consider whether the Court will decide on the issue at all. Courts may be reluctant to intervene in issues between the other two branches of government. This reluctance may stem from the idea that Congress can and will supersede the authority of the President if it feels necessary. President Obama, himself, acknowledged the ability and authority of Congress to take such action. Although the Court may not need to intervene if Congress can do so on its own accord, the executive action has resulted in such controversy that it may take on the case in order to reach finality on the issue.
If the Court attempts to resolve the constitutional issue at the center of the lawsuit of whether the action was within the President’s power, it will have to consider the broad discretion granted to the executive in the context of immigration. USCIS and ICE, both agencies of the executive branch, have long been granted prosecutorial discretion in taking action to deport immigrants. So, as the logical extension, the President as head of the executive branch could issue an action regarding the exercise of this discretion.
The opposition argues, however, that the executive action does much more than just prevent deportation. Opponents argue that the programs in effect give the removable immigrants “legal presence” rather than just prevent their removal. If the immigrants are given a legal presence or status, this would be outside the power of the President, as only Congress can modify the laws creating and granting status due to the separation of powers. Further, the opposition claims that the action violates the elaborate process of the Administrative Procedures Act.
Although seemingly a broad case over the constitutional power of the President to issue such an action, the legal battle can reasonably be reduced to a battle over the benefits extended by the programs. If the executive action is viewed as simply a discretionary deference of removal on behalf of the executive, then the action should stand. However, if the action is viewed as granting any type legal status to immigrants, then the executive action should be struck down as an unconstitutional exercise of executive power.
A pivotal point in this discussion of whether a legal status has been created, and one that is not currently being discussed at length, is whether the grant of the work authorization can be seen as granting legal status. Those opposing the action should focus on work authorization as evidence of status, and those favoring the action will have to explain why this does not constitute status. So, although the broad constitutional arguments may seem appealing and translate well in the media, the party that can focus its argument on the small details, such as work authorization, may likely be victorious.