Deferred Action and the Bounds of Agency Discretion: Reconciling Policy and Legality in Immigration Enforcement
Washburn Law Journal, Vol. 55, p.143, 2015
32 Pages Posted: 9 Apr 2016
Date Written: April 6, 2016
To assess the legality of President Obama’s immigration reform initiative, Deferred Action for Parents of Americans (DAPA), we should look to a now-neglected implement in the lawmaker’s toolbox: the art of legislative compromise. The landmark 1965 Immigration Act, which dismantled the discredited regime of national origin quotas that for decades had marred U.S. immigration law, also confirmed that U.S. immigration law operated against a backdrop of difficult choices. Legislators were well aware of the broad international appeal of the benefits of lawful residence in the U.S., including the ability to work legally. They also candidly acknowledged that the U.S. could not accept all foreign nationals who hoped to attain these benefits. By facilitating work authorization for almost 40% of the United States’ current undocumented population, DAPA undermines the key compromise in the 1965 Act between liberalizing legal immigration and deterring illegal immigration.
Congress has long recognized that untrammeled executive discretion could undermine the compromise that produced the Immigration and Nationality Act (INA) as we know it today. Sharing that concern, immigration officials have historically limited discretionary grants of immigration benefits to those that are expressly authorized by Congress or bridges to a form of legal status under the INA. This cabining of immigration discretion preserves the INA’s balance. DAPA ventures far beyond that settled practice, by facilitating work permits to a sizeable proportion of the U.S. undocumented population that lacks a clear path to a legal status. DAPA’s exercise of unilateral discretion threatens to up-end Congress’s comprehensive scheme and strain the constitutional fabric of separation of powers. To guard against these risks, courts should hold that DAPA exceeds the ambit of discretion that the INA delegates to the executive branch.
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