Taking Care of Immigration Law: Presidential Stewardship, Prosecutorial Discretion, and the Separation of Powers

Peter Margulies

Roger Williams University School of Law

February 11, 2013

Boston University Law Review, Vol. 94, p. 105, 2014
Roger Williams Univ. Legal Studies Paper No. 133

President Obama’s chief initiative on immigration, Deferred Action for Childhood Arrivals (DACA), has inspired a fierce debate on presidential power with the usual suspects switching roles. Critics of presidential unilateralism have endorsed DACA, which administratively implemented portions of the DREAM Act to avoid hardship to undocumented children who accompanied parents to the U.S. In contrast, proponents of presidential unilateralism such as John Yoo have assailed the administration’s prosecutorial discretion rationale.

Critics are correct on one point: the Obama administration’s prosecutorial discretion rationale does not support the blanket relief that DACA affords. DACA’s legal support stems not from prosecutorial discretion but from the President’s provisional power to protect “intending Americans” from violations of law by nonfederal sovereigns. The nonfederal sovereigns posing a danger here are individual states like Arizona that have enacted restrictive immigration legislation. To analyze the scope and derivation of this presidential power, the Article builds on the stewardship theory advanced by Theodore Roosevelt.

The Article views stewardship as a provisional power within Youngstown’s second category of congressional acquiescence. Presidents since the Founding Era have used this power in the course of conducting foreign relations. Under the stewardship paradigm, the President can act interstitially to preserve Congress’s ability to legislate. Stewardship on this reading can also check wayward state impulses, ensure synergy between international law and national interests, and offer reasoned elaboration of the President’s actions.

DACA reflects what I call the “new stewardship” of the Obama administration. This new paradigm blends the Framers’ concern about negative externalities of state measures with a commitment to the fairness that undergirds modern equal protection doctrine. DACA limits state incentives for profiling and harassment of undocumented children. Moreover, like the most resonant passages in Obama’s Second Inaugural, DACA posits a synergy between the welfare of the most vulnerable and the national interest.

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Date posted: February 12, 2013 ; Last revised: October 3, 2015

Suggested Citation

Margulies, Peter, Taking Care of Immigration Law: Presidential Stewardship, Prosecutorial Discretion, and the Separation of Powers (February 11, 2013). Boston University Law Review, Vol. 94, p. 105, 2014; Roger Williams Univ. Legal Studies Paper No. 133. Available at SSRN: http://ssrn.com/abstract=2215255

Contact Information

Peter Margulies (Contact Author)
Roger Williams University School of Law ( email )
10 Metacom Avenue
Bristol, RI 02809
United States
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