December 7, 2014
Almost as soon as President Obama unveiled his plan for executive action as a means of helping to fix the broken immigration system, Republican members of congress and state attorneys general began putting together a lawsuit to stop it. They claim that he is overstepping his authority as president and seek to nullify these executive orders. The Republican controlled House of Representatives voted 219-197 to make the plan “null and void and without legal effect.” (However, while President Obama is still in office, the Republicans are unable to pass any bills into law without his consent, because in order to override his veto power, they need at least 66% of the seats in both houses of Congress. They will still have less than 60% in both in the upcoming session.)
In order to defeat this executive action, it seems they will have to do so in the courts. However, it is our opinion that these executive orders are legal (and constitutional). The only politically (and perhaps legally) divisive aspect of the plan is the expansion of the deferred action program that will apply to over 4 million undocumented immigrants. The largest part of this is Deferred Action for Parental Accountability (DAPA), which for three years at a time grants relief from deportation to undocumented parents of U.S. Citizens who pay back taxes and pass a background check. (In addition to this, there is an expansion of the existing DACA program).
Nearly all of the claims against the executive action’s legality have to do with this deference of action. (In fact, the lawsuit doesn’t mention much else.) Some are arguing that President Obama is ignoring his executive duty by refusing to deport these people. Granted, they are eligible for legal removal. It may thus appear that offering them the opportunity to not be deported is ignoring the law. However, more extensive review indicates that it isn’t as simple as this.
Understanding whether or not these executive orders are legal requires knowing what they are. In the case of deferred action, what the executive is saying to qualifying undocumented aliens can be translated as “if you meet these criteria, you have our word that we won’t deport you for a while.” What’s interesting about this is that there is no legally binding aspect to this promise of non-deportation. The status of deferred action is no true status at all. As was hinted at in the italicized text, the government may decide at a future point that the alien is in fact fit for deportation and begin removal proceedings. Further, deferred action is a time-honored immigration practice. Past presidents have done things very similar to this (though those executive actions did not affect as many people and there wasn’t as much political opposition).
However, the main reason we feel this aspect of the action is legal is that in truth, President Obama is still appropriately using all the money that Congress is giving the federal government to enforce immigration laws. There are over 11 million undocumented aliens in the U.S., but congress gives the federal government only enough money to actually deport at most 400,000 of them a year. There are at least three million undocumented immigrants that do not qualify for DACA or DAPA in addition to the aliens who attempt to illegally cross the border today. Last year, around 370,000 people were deported, and over 235,000 of them were apprehended along the border. Just under 135,000 people were deported from the interior of the U.S. last year, which means that if there is no decline in the amount of people trying to cross the border illegally, it will take at least twenty years to deport everyone.
With this in mind, it is clear that the executive must make decisions on who to deport. DACA and DAPA in this sense can be seen as the executive gaining information from undocumented aliens and using it to determine if it would be a good use of national defense resources to pursue them for removal (or to focus these resources elsewhere). Deferred action approval would imply that the executive feels the aliens in question are not a threat to this nation at this time. (And, it gives them incentive to not become a threat because approval requires that they submit a great deal of personal information, including biometrics.) It can then be argued that DACA and DAPA are, in reality, only attempts to help improve national security with limited resources. (This argument appears especially cogent when it is taken into consideration that DACA and DAPA are funded by petition fees.) Taken in this light, it seems President Obama is acting within his executive authority and enforcing the law as written.