Raquel Aldana is the associate dean for faculty scholarship and professor of law at Pacific McGeorge School of Law.

As recently as 2012 in Arizona v. U.S., the Supreme Court recognized that that executive discretion over when and how to prosecute immigration cases is an inherent constitutional power, lending the strongest support to the propriety of President Obama’s proposal.

A "principal feature of the removal system,'' the court said in that case, "is the broad discretion exercised by immigration officials ... [who], as an initial matter, must decide whether it makes sense to pursue removal at all." The court elaborated that "discretion in enforcement of immigration law embraces immediate human concerns ... the equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this nation's international relations."

The Supreme Court has ruled that executive discretion over when and how to prosecute immigration cases is an inherent constitutional power.

Prosecutorial discretion authorizes the president as the chief executor of the law to define his immigration enforcement priorities. Granting temporary reprieve from removal to potentially over 5 million unauthorized immigrants who are the parents of U.S. citizen children or DACA recipients or certain highly needed workers permits a more effective allocation of limited enforcement resources.

The large number of potential beneficiaries and the conferral of work authorization and other privileges, such as driver’s licenses, raises legitimate questions about whether the measure amounts to legislation, violating separation of powers.

But deferred action does not confer an immigration visa on the recipient and is subject to termination at any time. President Obama can certainly not guarantee it beyond his own presidency.

The reprieve from removal is not automatic and is subject to case-by-case adjudication under guidelines issued by the Department of Homeland Security as he is authorized to do under federal immigration law.

Furthermore, the law authorizes the department to issue work authorization for noncitizens once deferred action has been conferred, provided they demonstrate “economic necessity.”

Finally, President Obama’s proposed action must be viewed in context. By requiring presidents to “take care that the laws be faithfully executed," the Constitution prohibits the president from picking and choosing which laws to enforce. A blanket policy of nonenforcement would amount to an abdication of the immigration agency’s responsibilities.

But President Obama has been one of the most effective enforcers of the immigration laws, with nearly 400,000 removals each year since he took office. With this record, President Obama cannot be accused of not enforcing the immigration laws.



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