Mainstream and rightwing media have done an atrocious job discussing the legal issues implicated by President Obama's immigration policy. While rightwingers clearly believe the president's policies constitute treason, at a minimum, the mainstream media has not thoroughly educated the public regarding the lawfulness of the orders. Thankfully, law professors blog! I wrote a very lengthy post on Facebook that documents President Obama's authority to shape immigration policy in the manner he announced yesterday. I am reposting this information for those of you who follow my blog on Blogger. Enjoy.
ATTENTION: Before you can argue that the government has violated a law, you must actually READ the law.
FACT: Congress has the exclusive power to pass laws regarding immigration (U.S. Const. Article I, Section 8, Cl. 4).
FACT: Executive Power of the US is vested in the President, which means the President, not Congress, executes the immigration laws (U.S. Const. Article II, Sect. 1, Cl. 1).
FACT: Congress can give a certain amount of discretion to the Executive regarding the enforcement and implementation of federal law – so long as the statute provides an “intelligible principle” to guide the Executive. If this occurs, then Executive decisions regarding enforcement of the law do not constitute impermissible legislative action. Instead, it is merely execution. This rule is called the “nondelegation doctrine.” Congress does not unlawfully delegate its legislative powers to the Executive if the legislation contains coherent rules for the Executive to follow. See Whitman v. American Trucking Associations, Inc., 531 U.S. 457, 465 (2001).
FACT: The Immigration and Nationality Act (INA) is a federal statute that establishes legal rules and requirements regarding immigration and naturalization (8 U.S.C. Sect. 1103-1778).
FACT: Consistent with the Constitution, the INA gives the Executive Branch (President, Homeland Security, Attorney General, and Secretary of State) the power to enforce immigration laws (8 U.S.C. Sect. 1103-1104).
FACT: The Executive Can "Cancel" the Removal of Certain Deportable Individuals.
The INA allows the Attorney General to cancel removal (deportation) or adjust the status of certain categories of undocumented individuals. The statute explicitly spells out the criteria for doing so. Thus, the statute provides an “intelligible criteria” for the Attorney General to follow. (8 U.S.C. Section 1229b(a)-(b)).
Conditions for Cancellation of Removal: More specifically, the INA allows the Attorney General to cancel the removal of a deportable individual who (1) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application; (2) has been a person of good moral character during such period; (3) has not been convicted of an offense [defined in several sections of the statute]; and (4) establishes that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence. This straightforward provision indisputably states an intelligible principle. (8 U.S.C. Section 1229b(b))
FACT: The Executive Can Give Temporary Protected Status to Certain Deportable Individuals.
The INA also allows the Attorney General to grant “Temporary Protected Status” (TPS) to deportable individuals from certain countries that the Attorney General has placed on a TPS list. As required by Supreme Court doctrine, the INA gives SPECIFIC guidelines – or an intelligible principle – for the Attorney General to follow when determining whether to give TPS designation to a country. The statutory factors include serious conditions in the individual’s home country, like armed conflict; natural disasters; a request for temporary protected status by the country; or “extraordinary and temporary conditions” that preclude the safe return of the individual, so long as TPS does not conflict with the interests of the US. (8 U.S.C. Sections 1254a-i)
FACT: The Executive Must Provide Employment Authorization for TPS Individuals.
The INA also provides that the Attorney General SHALL “authorize the alien [who has received TPS designation] to engage in employment in the United States and provide the alien with an ‘employment authorized’ endorsement or other appropriate work permit.” The current TPA list includes several nations in Africa and Central America.
SUMMARY: Federal law allows the Executive to cancel the removal of deportable individuals, give TPS designation to countries and individuals from those nations. Federal law also REQUIRES the Executive to give work permits to individuals who receive TPS designation.
FACT: President Obama's description of his proposals indicate that his policies lie squarely within the statutory powers given by Congress to him, Homeland Security, and the Attorney General. President Obama’s orders would allow individuals “who have lived in the United States for at least five years” to apply for relief from deportation and for certain individuals who have not committed crimes to apply for work permits. These are all powers that lie within the discretion of the Executive under the Article II of the Constitution and within the INA.
These are just some of the potential powers that President Obama could invoke as authority for his immigration policies. Because the President’s orders are consistent with the powers granted to the Executive by Congress, he is not making law. Instead, his orders would only enforce law, using the clear guidelines Congress provided in the INA.
OPINION: If you have NOT read the INA but you have concluded that President Obama’s proposed immigration orders violate federal law or the Constitution, then you are contributing to one of the worst problems in our society: pontificating about important legal and policy issues without a basic understanding of the underlying rules that govern the issues. You need to grow up, read, and grow an open mind. You are a victim of your own stubborn refusal to accept any fact that conflict with your world view. In other words, you are an uninformed, anti-intellectual, partisan hack. But, perhaps, you already knew that.
OTHER CONSTITUTIONAL LAW PROFESSORS HAVE CHIMED IN:
Also, the Office of Legal Counsel (Department of Justice) has released its own memorandum that provides legal authority for President Obama's actions.