Immigration reformers in Congress are worried about a possible presidential Plan B that would bypass Congress altogether and simply change existing immigration law by executive action.
Could the president do this? He already has.
Is this a realistic worry? Yes.
Does it follow that Sen. Marco Rubio (R-Fla.) is right and that immigration reformers ought to take what we can get on e-verify and border security by signing on to the Senate's bill? No.
Yet, it is true that one very large problem for real immigration reformers in Congress is that presidential and executive discretion in this area is real and constitutionally based. Whether it is politically legitimate is a different question.
Interested readers would do well to consult the extensive, even-handed treatment of these issues by the Congressional Research Service. The CRS is a non-partisan research and analysis service devoted exclusively to assisting the legislative branch. Their reports, insofar as I have become familiar with them, are substantive and for the most part fair and balanced.
Focusing on immigration, they point out that, "The Attorney General and, more recently, the Secretary of Homeland Security have had prosecutorial discretion in exercising the power to remove foreign nationals" (p.5) and they detail how discretionary exercises of removal power developed over time. Reading through that report you would also learn that the origins of "deferred action" can be dated back to 1975(!).
They note that, "The established doctrine of 'prosecutorial discretion' provides the federal government with broad" latitude in determining when, whom, and whether to prosecute particular violations of federal law." (p.11). Further,
While it could perhaps be argued that decisions to refrain from fully enforcing a law might, in some instances, run afoul of particular statutes that set substantive priorities for or otherwise circumscribe an agency's power to discriminate among the cases it will pursue, or run afoul of the President's constitutional obligation to "take care" that the law is faithfully executed, such claims may not lend themselves to judicial resolution. In contrast, when it enacted the Immigration Reform and Control Act of 1986, Congress delegated to the Attorney General (currently, the Secretary of Homeland Security) the authority to grant work authorization to aliens who are unlawfully present. (p.11)
However, they write,
While the executive branch's prosecutorial discretion is broad, it is not "unfettered," and has traditionally been exercised pursuant to individualized determinations. Thus, an argument could potentially be made that the permissible scope of prosecutorial or enforcement discretion is exceeded where an agency utilizes its discretion to adopt a broad policy of non-enforcement as to particular populations in an effort to prioritize goals and maximize limited resources. It would appear, especially with respect to agency enforcement actions, that the invocation of prosecutorial discretion does not create an absolute shelter from judicial review, but rather is subject to both statutory and constitutional limitations. (p.14)
The bottom line seems to be: "While it is apparent, then, that the exercise of prosecutorial discretion is subject to certain restrictions, the precise boundaries beyond which the executive may not cross remain unclear."
So, did the president and his administration cross the legal and constitutional boundary of allowed discretion into the domain of failing to faithfully carry out the laws of the land?
The most reasonable interpretation of the rather lengthy CRS exposition of various elements that one would have to consider in arriving at a conclusion is: maybe.
One question that faces congressional immigration reformers is: Would he do it again?
Next: Presidential Discretion in Immigration Policy: Deja Vu?
