Immigration Law — Office of Legal Counsel Issues Opinion Endorsing President Obama's Executive Order on Deferred Action for Parental Accountability — The Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others, 38 Op. O.L.C. (Nov. 19, 2014).
8 Pages Posted: 18 Feb 2016
Date Written: June 10, 2015
Recent executive actions on drugs, healthcare, and immigration have refocused public attention on an important but unsettled legal issue: the scope of the President’s enforcement discretion. If renewed attention has proven anything, it is that demarcating the precise boundaries of “prosecutorial” discretion is not easy. When an act is either an appropriate exercise of discretion or an impermissible shirking of constitutional or statutory responsibilities, the line between lawful and unlawful nonenforcement can have far-reaching consequences for our coordinate branches of government.
Ongoing efforts to delimit the President’s enforcement discretion took a new turn on November 20, 2014, when President Obama announced an initiative that would extend a form of temporary deportation relief known as “deferred action” to certain parents of U.S. citizens or lawful permanent residents (LPRs). Prior to the announcement, the Department of Justice’s Office of Legal Counsel (OLC) published an opinion concluding that the new program was a permissible exercise of the Department of Homeland Security’s (DHS’s) discretion to enforce the immigration laws. The same opinion determined that another proposal to extend the same protections to parents of Deferred Action for Childhood Arrivals (DACA) recipients was legally impermissible, reasoning that the latter proposal did not fulfill “congressional policies and priorities” as reflected in prior enactments. In this way, the OLC sought to draw a line in the sand, responding to a litany of voices accusing the President of overreach. Though the OLC commendably sought to devise some means of cabining enforcement discretion in immigration, its “congressional priorities” analysis fell short of conveying a workable limiting principle.
Keywords: Immigration Law; Executive Orders; Enforcement Discretion; Take Care Clause; Separation of Powers
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