It’s Time to Exert Executive Power Over Deportations

A decade of virtual stalemate debate has brought the president dangerously close to the milestone of 2 million deportations. It’s time for a new strategy.

HOMESTEAD, FL - MAY 11: Elena Marquez (L) holds a sign reading 'it's in your hands Mr. President' as she and others participate in a rally calling on the President Barack Obama to immediately suspend deportations and for Congress to pass an immigration reform that's inclusive of all 11 million undocumented people in the U.S. on May 11, 2013 in Homestead, Florida. The rally is part of what is being called a rolling fast in different places throughout the nation over the course of the next two months to bring what organizers say is a moral, prophetic voice to the immigration debate. (Photo by Joe Raedle/Getty Images)
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Pablo Alvarado
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Pablo Alvarado
Feb. 14, 2014, midnight

Dur­ing his State of the Uni­on ad­dress this year, Pres­id­ent Obama said, “It is time to heed the call of busi­ness lead­ers, labor lead­ers, faith lead­ers, law en­force­ment — and fix our broken im­mig­ra­tion sys­tem.” In the same speech, the pres­id­ent em­phas­ized his ex­ec­ut­ive power to take ac­tion when Con­gress will not. But Con­gress is threat­en­ing an­oth­er im­passe on im­mig­ra­tion. And while Cap­it­ol Hill plays polit­ics, Obama re­fuses to use his ex­ec­ut­ive au­thor­ity to halt the de­port­a­tion of more than 1,100 im­mig­rants per day.

The pres­id­ent at times in­sists he does not have the ex­ec­ut­ive au­thor­ity to stop de­port­a­tions. That is in­cor­rect. In fact, when it comes to im­mig­ra­tion, pres­id­en­tial ac­tion taken im­me­di­ately is ex­actly what’s needed to pro­pel and trans­form the le­gis­lat­ive de­bate.

Pablo Al­varado is the ex­ec­ut­ive dir­ect­or of the Na­tion­al Day Laborer Or­gan­iz­ing Net­work. (Cour­tesy Photo)The Con­sti­tu­tion places the “ex­ec­ut­ive power” of the United States in the pres­id­ent and vests him with au­thor­ity to ex­ecute the laws. The Su­preme Court has long re­cog­nized that this power in­cludes the “ab­so­lute dis­cre­tion” to de­term­ine when and how en­force­ment re­sources should be al­loc­ated. The Con­gres­sion­al Re­search Ser­vice has defined this dis­cre­tion, some­times re­ferred to as “pro­sec­utori­al dis­cre­tion,” as the “wide lat­it­ude” to de­term­ine “when, whom, how, and even wheth­er to pro­sec­ute ap­par­ent vi­ol­a­tions of the law” (em­phas­is ad­ded).

Oth­er pres­id­ents, from Pres­id­ent Frank­lin D. Roosevelt to Pres­id­ent George H.W. Bush, have used ex­ec­ut­ive ac­tion to de­fer de­port­a­tions. In fact, so has Pres­id­ent Obama. The De­ferred Ac­tion for Child­hood Ar­rival Pro­gram gave tem­por­ary im­mig­ra­tion re­lief to young un­doc­u­mented im­mig­rants known as “Dream­ers.” Through a June 2012 memor­andum, Home­land Se­cur­ity Sec­ret­ary Janet Na­pol­it­ano dir­ec­ted im­mig­ra­tion of­fi­cials to ex­er­cise pro­sec­utori­al dis­cre­tion for those who came to the United States when they were very young and who fit spe­cif­ic out­lined DACA cri­ter­ia. The meas­ure did not con­fer per­man­ent status, but it was de­signed to of­fer tem­por­ary re­lief un­til the en­act­ment of im­mig­ra­tion re­form — pre­cisely the sort of re­lief the pres­id­ent could ex­tend to nearly all un­doc­u­mented im­mig­rants.

Some will raise ques­tions about the polit­ic­al im­plic­a­tions if the pres­id­ent were to act and wheth­er he should — but there is no longer any ques­tion wheth­er he can. The Su­preme Court has re­peatedly con­firmed the pres­id­ent’s au­thor­ity to de­cline to bring en­force­ment ac­tions. In Heck­ler v. Chaney, the Court noted that it has his­tor­ic­ally “re­cog­nized on sev­er­al oc­ca­sions over many years that an agency’s de­cision not to pro­sec­ute or en­force, wheth­er through civil or crim­in­al pro­cess, is a de­cision gen­er­ally com­mit­ted to an agency’s ab­so­lute dis­cre­tion.”

Yet, the hard truth is that while the pres­id­ent can stop de­port­a­tions, he is choos­ing not to for polit­ic­al reas­ons. Pres­id­ent Obama ap­pears to think that he must de­port people in or­der to leg­al­ize them; he also seems to think that not only con­tinu­ing de­port­a­tions is good for le­gis­lat­ive ne­go­ti­ations but that de­port­ing people at a high­er rate than his pre­de­cessors is ne­ces­sary. It is not.

Cer­tain Re­pub­lic­ans may say that ex­pand­ing re­lief through dir­ect Pres­id­en­tial ac­tion would threaten the de­bate about com­pre­hens­ive im­mig­ra­tion re­form. The White House has prom­ised a year of ac­tion and shouldn’t ca­pit­u­late to any threats.

The same ar­gu­ment was made be­fore the pres­id­ent’s im­ple­ment­a­tion of the de­ferred-ac­tion pro­gram for im­mig­rant youth. But DACA didn’t end the pro­spects for im­mig­ra­tion re­form — it im­proved them and helped place im­mig­ra­tion re­form at the top of the na­tion­al agenda, re­liev­ing the suf­fer­ing of hun­dreds of thou­sands and open­ing space in the con­ver­sa­tion for the full par­ti­cip­a­tion of un­doc­u­mented youth.

A dec­ade of al­low­ing Re­pub­lic­an threats to drive the de­bate has brought the pres­id­ent dan­ger­ously close to the mile­stone of 2 mil­lion de­port­a­tions, but it hasn’t got­ten us any closer to a just and hu­mane policy. At this cru­cial stage, it’s time for a new strategy.

Just last week the pres­id­ent al­luded to a shift in his stance and a will­ing­ness to con­sider “all op­tions” for im­mig­ra­tion. He shouldn’t wait. De­ferred Ac­tion for Child­hood Ar­rivals proved that in­cre­ment­al, dis­cre­tion­ary re­lief, al­beit tem­por­ary, can be good for people, good for polit­ics, and good for the pres­id­ent who shows he won’t wait for ob­struc­tion­ists to bring im­mig­ra­tion policy in line with our na­tion­al val­ues.

More so, there is a great­er ur­gency to drive his ac­tions. As the de­bate pro­ceeds, the pres­id­ent’s own policies con­tin­ue to ex­acer­bate, rather than re­lieve, the pain of the 1,100 im­mig­rants de­por­ted daily. Now that it’s un­deni­ably clear that he has the power to stop the ag­gress­ive and un­just pat­terns of en­force­ment, it’s time for Pres­id­ent Obama to use that au­thor­ity and stop de­port­ing the very people re­form is de­signed to in­clude. This would prove that his talk about com­pas­sion for im­mig­rants and tak­ing ac­tion is more than just hol­low rhet­or­ic.

The Next Amer­ica wel­comes op-ed pieces that ex­plore the polit­ic­al, eco­nom­ic, and so­cial ef­fects of the pro­found ra­cial and cul­tur­al changes fa­cing our na­tion. Email us.

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