Statement for the Record by Daniel Costa, Director Of Immigration Law and Policy Research at the Economic Policy Institute
Chairman Goodlatte, Ranking Member Conyers, and members of the House Judiciary Committee, I thank you for the opportunity to submit this statement for the record for the hearing entitled “President Obama’s Executive Overreach on Immigration.”
It is of utmost importance to understand both the limits of the actions the president may take with respect to the implementation and enforcement of immigration laws and the president’s inherent constitutional authority and responsibilities. My statement briefly examines the president’s statutory authority regarding the removal of unauthorized aliens and the flexibility that prosecutorial discretion allows the president, and the constraints it [statutory authority] imposes, as well as the statutory authority governing the granting of employment authorization to unauthorized aliens who qualify for deferred action. Contrary to the title of the hearing, I do not believe the president’s actions on immigration announced on November 20, 2014 — to defer the removal of certain qualifying unauthorized immigrants — constitute an “overreach” or should be characterized as such. If Congress disagrees and/or wishes to impose additional limits on the actions the president may take, it has the power to pass legislation that specifically directs and requires the president to act or not to act, in the manner that Congress prescribes.
Does the president have legal authority to defer the removal of all unauthorized immigrants?
No. The president cannot refuse to enforce the statutes of the Immigration and Nationality Act (INA), nor can he enforce an immigration law in a way that is contrary to the aims of the law. This requirement comes from the “Take Care” clause in the U.S. Constitution, which requires the president to ensure “that the Laws be faithfully executed.”1 The INA, which is the United States’ main set of immigration laws, contains many provisions specifying which aliens are removable (i.e., deportable). There are an estimated 11.2 million unauthorized immigrants in the United States,2 who are removable unless they can prove that they deserve to remain in the country because they qualify for a lawful status or qualify for a form of lawful presence under U.S. law.
Congress provides the executive branch with the funds to enforce the immigration laws, but it has not provided nearly enough funding to remove all 11.2 million unauthorized immigrants who reside in the United States. The U.S. Department of Homeland Security (DHS) believes that the amount Congress has appropriated is enough to remove approximately 400,000 unauthorized immigrants per year3 (3.6 percent of the total), and that is approximately the number of unauthorized immigrants the Obama administration has been removing. If the president were to refuse to remove any unauthorized immigrants, such action would violate his constitutional duty to faithfully execute the laws and amount to a de facto legalization in direct contradiction of what Congress has required of the president. Nothing remotely like this has happened.
Does the president have legal authority to defer the removal of certain unauthorized immigrants?
Yes. The president has some leeway to enforce the law — especially in the realm of criminal law, but also when it comes to immigration law — in the manner he determines will be most likely to achieve the aims of the law being enforced. This is known as “prosecutorial discretion.”4 While some scholars disagree as to the scope and parameters of prosecutorial discretion,5 none can reasonably argue that the president lacks this discretion, and the U.S. Supreme Court specifically affirmed the president’s use of prosecutorial discretion in the context of immigration enforcement in Arizona v. United States.6
This does not mean the president may decline to remove a particular unauthorized immigrant without justification; such a decision must be made in the context of enforcement priorities that are consistent with the policy goals of the law being enforced. Thus, the president may decide whom to remove first, and whom to remove last, as well as everyone in-between, by order of importance. Anyone who qualifies and is approved for “deferred action” has simply been put at the end of the list for removal. The president (or DHS, which implements his policies) may decide to change an unauthorized immigrant’s place in the removal line at a later date. That is why any deferred action is temporary and reversible. It is the government telling an unauthorized immigrant, “We’re not going to remove you right now, because there are others it is more important to remove first.” But deferred action does not lead to or confer the lawful status of permanent residence or citizenship; those who qualify for deferred action are only considered to be lawfully present.7
Deferred action is also the government making the sensible decision to focus its removal efforts on the least desirable and most dangerous unauthorized immigrants — criminals and individuals who pose national security risks, especially. It would be irrational and inefficient enforcement policy if the president did not set priorities regarding who should be removed first. The statutory objective set out in the law is the removal of unauthorized, removable immigrants, and DHS estimates the appropriations it receives from Congress (which reflect Congress’s budgetary and enforcement priorities) allow DHS to remove approximately 400,000 unauthorized immigrants per year. It is a matter of common sense that the president should set enforcement priorities, which means deciding the characteristics of the unauthorized immigrants that will be removed first. The president’s removal priorities for the past three years and eight months were set out in detail in the Morton Memo of March 2, 2011,8 a guidance memo from U.S. Immigration and Customs Enforcement; they include unauthorized immigrants who pose a danger to national security or a risk to public safety, including convicted criminals; recent entrants or border crossers who entered the United States without authorization; and fugitives or those who otherwise obstruct immigration controls. (The March 2nd memo was rescinded and superseded by the Johnson Memo of November 20, 2014.9)
Again, because there are 11.2 million unauthorized immigrants in the United States, but DHS has been provided the resources to remove only about 400,000 per year, the president may decide the characteristics of unauthorized immigrants who are considered low or lower priorities, as he has already done by determining who may qualify for the Deferred Action for Childhood Arrivals initiative (DACA), as well as by delineating certain characteristics in the “Factors to Consider When Exercising Prosecutorial Discretion” section of the Morton Memo of June 17, 2011,10 which include an unauthorized immigrant’s family ties to U.S. citizens, length of presence in the United States, pursuit or completion of a university education, or service in the military. (The June 17 memo was also rescinded and superseded by the Johnson Memo of November 20, 2014.)11
Thus, the executive actions announced by the president on November 20, 2014 — to defer the removal of unauthorized immigrants who have been in the country for at least five years and have had continuous presence in the United Sates since January 1, 2010, and who have an child who is either a U.S. citizen or legal permanent resident, and who have not committed any serious crimes (the new Deferred Action for Parental Accountability program, or “DAPA”; through which an estimated 3.5 million12 could qualify), as well as the modified qualification requirements for DACA which could potentially cover an additional over 300,000 unauthorized immigrants — are lawful. In total, under DAPA and an expanded DACA, approximately 5.4 million unauthorized immigrants could receive deferred action, 48 percent of the total unauthorized population.13 That leaves 5.8 million unauthorized immigrants still subject to removal, and the president has already indicated in the Johnson Memo how he will prioritize their removal.14
Does the president have legal authority to grant work authorization to unauthorized immigrants?
Yes. Under existing law, the president has the authority to grant work authorization (also known as an Employment Authorization Document or “EAD”) to unauthorized immigrants in the United States. This authority is set out in the Immigration and Nationality Act, at Section 274A(h)(3) [8 U.S.C. 1324a(h)(3)], which reads:
(3) Definition of unauthorized alien. -As used in this section, the term “unauthorized alien” means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General.15 [Emphasis added.]
This provision passed Congress and was signed into law by President Reagan as part of the 1986 Immigration Reform and Control Act,16 which legalized a large portion of the unauthorized immigrant population at the time and created the “I-9” employment verification system.
It is a plain and fair reading of subsection (B) to say that there are two routes for an alien who is not a legal permanent resident to receive employment authorization: either through explicit authorization in the INA or if the DHS secretary (a proxy for the president) says so, as long as there does not exist an explicit statutory prohibition. There is a list of regulations at 8 C.F.R. § 274a.12 setting out the different “Classes of aliens authorized to accept employment,” which includes unauthorized immigrants who have received parole or deferred action. Those regulations derive their legal authority from INA § 274A(h)(3)(B). The authority to promulgate these regulations was challenged through the administrative process in 1987, but the argument was rejected.17 The result is that the DHS secretary has the authority to grant employment authorization to unauthorized aliens via regulation under this statutory provision.
In 2011, then-chairman of the House Judiciary Committee Lamar Smith (R-Texas) introduced H.R. 2497, the “Hinder the Administration’s Legalization Temptation” Act (the “HALT Act”), which would have repealed the president’s authority to grant EADs to anyone he deems appropriate under INA § 274A(h)(3)(B).18 But the HALT Act did not pass; in fact it was not even voted on in either chamber of Congress. The proposed HALT Act legislation is evidence that Congress recognizes (however unhappy certain members might be about it) the president’s legal authority to grant employment authorization to the unauthorized aliens who qualify for deferred action.
Can the president be sued in court for using prosecutorial discretion to decide how to prioritize removable unauthorized immigrants?
It is unlikely that the president could be successfully sued for exercising prosecutorial discretion and granting deferred action to a subset of the unauthorized immigrant population. Any plaintiff seeking to sue the president must have standing in federal court, which means the plaintiff suing the president must show: 1) that he or she has suffered an injury-in-fact or will be imminently injured, 2) that there is a causal connection between the injury suffered and the action of the president; and 3) that a court decision in favor of the plaintiff will redress the injury suffered by the plaintiff.19
With the executive actions announced on November 20, 2014, the president has decided to defer the removal of up to 3.5 million20 unauthorized immigrants who have been in the country for at least five years and have had continuous presence in the United Sates since January 1, 2010, and who have an child who is either a U.S.-citizen or legal permanent resident, and who have not committed any serious crimes (DAPA), as well as [to defer removal of] an additional estimated 300,000 unauthorized immigrants who could qualify under the updated DACA criteria.21 As a result of these actions, who will be able to claim they have been injured? How has any member of Congress or the public suffered by the nonremoval of an otherwise law-abiding resident who has been in the country for at least five years and who was in any case unlikely to be removed in the future? It’s difficult even to imagine a hypothetical example. Thus, proving that a plaintiff has standing will be a major obstacle to any lawsuit being filed against the president for offering deferred action to certain unauthorized immigrants.22
In addition, federal courts are generally reluctant to resolve disputes between the executive and legislative branches of the government. Such a dispute would likely be considered a “political question” by the court. Political questions are nonjusticiable because the court is not being asked to resolve a legal dispute, which is its function, but is instead being asked to decide on an issue that can be resolved through the political process. The specific elements for what constitutes a political question are described in a landmark U.S. Supreme Court case, Baker v. Carr,23 but the key in this immigration context is that in response to an action taken by the president that Congress objects to, Congress has the necessary power and an adequate avenue through which it can exert its will on the president. Specifically, Congress could pass a law that constrains or further specifies how it wishes to see the president enforce U.S. laws regarding the removal of unauthorized aliens. Thus, there is a clear political solution and pathway to resolve the controversy between Congress and the president, which some members of Congress have complained about24 (i.e., that the president is not enforcing the law properly or at all), but Congress has so far declined to go down that path. As a result, the president may enforce the laws as he sees fit, so long as his actions further the goals of the laws he is enforcing and do not blatantly contradict or ignore them.
The president’s two existing deferred action initiatives could suspend the removal of approximately 5.4 million unauthorized immigrants, an estimated 48 percent of the total unauthorized population,25 but leave nearly 5.8 million unauthorized immigrants still subject to removal. If the removal rate of approximately 400,000 per year continues, it would take 14.5 years to remove the remaining unauthorized immigrants, assuming no new migrants entered the country without authorization or overstayed the validity period of their temporary visas.
It is clear that the president cannot make a blanket decision to remove none of the 11.2 million unauthorized immigrants, or come too close to declining to remove any of them, because that would violate his duty to enforce the law under the Take Care clause of the Constitution. However, since the president is using prosecutorial discretion to enforce the law according to clearly defined priorities — that is, he will target and prioritize for removal the remaining 5.8 million unauthorized immigrants while only having funds allowing him to remove up to 400,000 per year — the president’s decision on November 20, 2014, to defer the removal of an estimated 3.9 million unauthorized immigrants (beyond those already eligible for DACA) is on solid legal footing. On November 25, 2014, 135 immigration professors and scholars came to a similar conclusion, stating “that the expansion of the DACA program and the establishment of Deferred Action for Parental Accountability are legal exercises of prosecutorial discretion. Both executive actions are well within the legal authority of the executive branch of the government of the United States.”26
1. U.S. Const. art. II, § 3.
2. Pew Research Center, Hispanic Trends Project, “Unauthorized Immigrants in the U.S., 2012,” http://www.pewhispanic.org/interactives/unauthorized-immigrants-2012/.
3. Marcus Stern, “Director John Morton Explains ICE’s Priorities on Deportation,” ProPublica (Sep. 9, 2010), http://www.propublica.org/article/director-john-morton-explains-ices-priorities-on-deportation.
4. Black’s Law Dictionary, “Discretion” (9th ed. 2009) via WestlawNext online, Thomson Reuters.
5. See, e.g., Zachary Price, Enforcement Discretion and Executive Duty, 67 Vand. L. Rev. 671 (2014); Shoba Sivaprasad Wadhia, The Role of Prosecutorial Discretion in Immigration Law, 9:2 Conn. Pub. Int. L.J. 243 (2010).
6. Arizona v. United States, 567 U.S. ___, 4-5 (2012).
7. Unauthorized aliens who qualify for deferred action are not in a “lawful status” but are not considered to be “unlawfully present” for admissibility purposes. For more background on the distinction between lawful status and lawful presence, see, e.g., David Leopold, “Making Sense Of Yesterday’s USCIS DACA Guidance: Lawful Status vs. Lawful Presence,” DavidLeopold.net (Jan. 19, 2013), http://davidleopold.net/2013/01/19/making-sense-of-yesterdays-uscis-daca-guidance-lawful-status-vs-lawful-presence/; U.S. Citizenship and Immigration Services, “Consideration of Deferred Action for Childhood Arrivals Process: Frequently Asked Questions” (updated Oct. 23, 2014), http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process/frequently-asked-questions.
8. Memorandum from Director John Morton, U.S. Immigration and Customs Enforcement, Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens (Mar. 2, 2011), available at http://www.ice.gov/doclib/foia/prosecutorial-discretion/civil-imm-enforcement-priorities_app-detn-reml-aliens.pdf.
9. Memorandum from Secretary Jeh Johnson, U.S. Department of Homeland Security, Policies for the Apprehension, Detention and Removal of Unauthorized Immigrants (November 20, 2014), available at http://www.dhs.gov/sites/default/files/publications/14_1120_memo_prosecutorial_discretion.pdf.
10. Memorandum from Director John Morton, U.S. Immigration and Customs Enforcement, Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens (June 17, 2011), available at http://www.ice.gov/doclib/foia/prosecutorial-discretion/pd_cnstnt_w_civil_imm_enforce_ice_priorities.pdf.
11. Supra note 9.
12. Jens Manuel Krogstad and Jefferey S. Passell, “Those from Mexico will benefit most from Obama’s executive action,” Pew Research Center Fact Tank (Nov. 20, 2014), http://www.pewresearch.org/fact-tank/2014/11/20/those-from-mexico-will-benefit-most-from-obamas-executive-action/.
14. Supra note 9.
15. The Attorney General’s power here was transferred to the Secretary of Homeland Security after the creation of the U.S. Department of Homeland Security (DHS).
16. Immigration Reform and Control Act (IRCA), Pub.L. 99–603 (Nov. 6, 1986), 100 Stat. 3445, at 3368.
17. Andorra Bruno, Todd Garvey, Kate Manuel, and Ruth Ellen Wasem, Cong. Research Serv., Analysis of June 15, 2012 DHS Memorandum, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, 17-18 (2012).
18. Hinder the Administration’s Legalization Temptation Act (the “HALT Act”), H.R. 2497, 112th Cong. (2011), introduced July 12, 2011, http://thomas.loc.gov/cgi-bin/query/z?c112:H.R.2497.IH:/.
19. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
20. Supra note 12.
21. Executive Actions on Immigration, U.S. Citizenship and Immigration Services, http://www.uscis.gov/immigrationaction.
22. See, e.g., David Savage, “President Obama’s immigration plans hard to block, legal experts say,” LA Times (Nov. 18, 2014), http://www.latimes.com/nation/la-na-1119-immigration-legal-basis-20141119-story.html; Fred Lucas, “What Are the Legal Grounds to Challenge Obama’s Coming Immigration Order?” TheBlaze.com (Nov. 20, 2014).
23. Baker v. Carr, 369 U.S. 186 (1962).
24. See, e.g., Tony Lee, “Sessions: Congress shouldn’t adjourn until it fights exec amnesty that will ‘end immigration enforcement’” Breitbart.com (July 31 2014), http://www.breitbart.com/Big-Government/2014/07/31/Jeff-Sessions-Congress-Do-Not-Adjourn-Exec-Amnesty-Will-End-Immigration-Enforcement-in-USA; Sabrina Siddiqui, “Rand Paul On Obama’s Immigration Executive Action: ‘We Should Take Him To Court’” HuffingtonPost.com (Nov. 19, 2014), http://www.huffingtonpost.com/2014/11/19/rand-paul-immigration-executive-action_n_6188458.html.
25. Supra note 12.
26. Letter from Hiroshi Motomura, Shoba Sivaprasad Wadhia, and Stephen Legomsky, et.al. (Nov. 25, 2014), https://pennstatelaw.psu.edu/sites/default/files/documents/pdfs/Immigrants/executive-action-law-prof-letter.pdf; see also Jim Kuhnhenn, “Legal scholars: Obama’s immigration actions lawful,” Associated Press (Nov. 25, 2014), http://bigstory.ap.org/article/c957a284aaa748dfba47ece9ce2712c1/legal-scholars-obamas-immigration-actions-lawful.