Last week I blogged about a heckler who pestered President Obama during a speech, urging him to stop deportations. The President responded that he lacked the power to do so through executive power. Of course, through the Deferred Action for Childhood Arrivals (DACA), the President has implemented, by executive power, the DREAM Act, a law Congress explicitly rejected.
And, it turns out, the heckler was aware of this precedent. He wrote an open letter to the President calling him out:
I am Ju Hong, the “heckler” that interrupted your speech at the Betty Ong Center in San Francisco last week. I spoke up not out of disrespect, however, either for you or our country. No, I spoke up — and am writing to you now — to ask that you use your executive order to halt deportations for 11.5 million undocumented immigrant families. …
You claim that the President of the United States has no authority to stop the deportations. And yet, in June 2012, before the 2012 election, which you won with the help of Latino and Asian voters, you implemented Deferred Action for Childhood Arrivals. With the stroke of a pen, you dramatically changed the lives of hundreds of thousands of young people like me who can now live without the daily threat of deportation, and can legally work in this country for the first time in our lives.
I don’t think the President will oblige here. But then again, he still has a lame-duck term come 2014.
Also, Will Baude recently linked to Zachary Price’s new article in the Vanderbilt Law Review about the scope of the President’s power not to enforce laws, titled “Enforcement Discretion and Executive Duty.” Price argues that DACA goes beyond the President’s powers on pp. 72-74 (the article says do not cite without permission, so I won’t). Certainly, stopping *all* deportations would not be constitutional.
Update: With the author’s permission, I quote the section on DACA, though I should stress that this is still a draft, and it may change before the final version (emphasis is mine):
Within the framework developed here, this policy amounts to a categorical, prospective suspension not only of the immigration statutes requiring removal of unlawful immigrants, but also of the statutory penalties for employers who hire immigrants without proper work authorization. The action thus is presumptively beyond the scope of executive authority; it requires a delegation from Congress to be valid. Yet no statute specifically authorizes the status—“deferred action”—conferred on immigrants under the policy; the program, rather, depends on an exercise of prosecutorial discretion, a promise not to enforce immigration laws for a specified period.313 Immigration officials, to be sure, have exercised discretion to abstain from immigration enforcement through deferred action since at least the 1970s,314 and Congress has recognized “deferred action” as a possible legal status in some statutes, thus arguably providing implicit authority for this executive practice.315 Yet immigration officials have used deferred action principally to avoid removing immigrants based on compelling individual circumstances316—a form of case-by-case non- enforcement discretion—and in any event such oblique statutory references to this enforcement practice cannot provide adequate support for so sweeping a suspension of statutory law.
Other scholars have persuasively argued that immigration law is an area, much like federal criminal law, in which a gross mismatch between the scope of prohibitions and the resources available to enforce them makes substantial non-enforcement of those laws inevitable.317 Even so, however, just as in the criminal context, executive officials should properly understand their role in immigration enforcement to be a matter of priority- setting rather than policy-making. Judged by this standard, the DACA program still seems hard to square with a proper conception of executive duty. To be sure, even without the program, law-abiding undocumented immigrants like those covered by the program might properly be low priorities for removal, as compared to individuals who have committed crimes or who otherwise pose some public safety threat. Yet declining to prioritize certain cases may have very different effects from the sort of announced, categorical policy reflected in the DACA program. While the former preserves the deterrent effect of federal statutes by leaving all individuals covered by the statute in some jeopardy, the latter purports to remove the risk of enforcement altogether. It thus squarely contradicts the policy of the statute to a degree that mere prioritization of enforcement resources does not.
The contradiction here seems particularly stark, moreover, because the category of individuals benefited by the DACA program are quite predictably and foreseeably within the scope of the removal statutes. As defenders of the program have observed, immigration authorities have granted deferred action (and other analogous forms of non-enforcement) to entire groups of individuals in the past.318 Yet some unforeseen humanitarian crisis or international incident seems typically to have provided the basis for such group-based relief in the past. As compared to such situations where exceptional, unforeseen events justify relief from the full rigor immigration law, providing relief to the beneficiaries of the DACA program is much harder to justify as an implementation of the policy objectives reflected in the statute.
However attractive as a matter of policy, the DACA program appears to violate the proper respect for congressional primacy in lawmaking that should guide executive action, even when substantial exercises of prosecutorial discretion are inevitable. To the extent Congress has adopted overbroad and unduly harsh immigration laws, Congress should remain accountable for its enactments. The executive branch should not presume the authority to let Congress off the hook.