Advocates for unfettered executive discretionary authority, be careful what you ask for.

Sunday, May 31st, 2015
By: Jonathan MontagJ.D.

This week the 5th Circuit Court of Appeals put the brakes, rather a wheel lock, on President Obama’s prosecutorial discretion initiatives, DAPA and an expanded DACA, deciding not to lift the stay of implementation of these programs in a decision on May 26, 2015. Legal experts predict that it may take until the President’s time in office is nearly up before the programs gets underway and by then millions of people who would be eligible for the programs may be discouraged from enrolling – assuming the programs are approved by the courts – because by then the Republican candidate for President will no doubt opine that the first thing he or she (Go Carly) will do is dismantle the program – and presumably not refund the filing fees.

Pro or anti- DAPA and the new DACA, one would be hard-pressed to say that the programs are not a dramatic expansion of the current mode of immigration enforcement. Essentially, what the programs do is allow millions of people to come forward and say. “Evaluate me. Am I deportation priority? If not, give me Deferred Action and the benefit that comes from Deferred Action, a work permit.” The immigration laws about deportation use the word, “Shall,” as in, “Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens…,” including “shall” remove people in the country without lawful status. INA § 237(a)(1). But, of course, just like a policeman may see a guy smoking a joint and wag his finger at the smoker, tell him to put it out, and to get lost; or see a person speeding and his finger at the speeder and tell him to slow down and behave in his exercise of prosecutorial discretion, the DAPA and DACA plans are conceived as a way to wag a finger at minor offenders (entering the United States illegally is a minor offense, INA § 275)  tell them to move on – and while moving on, pay $465 and get a temporary permit to work.

Not to delve too deeply into it, but the problem the courts, a District Court in Texas and a panel of the Fifth Circuit Court of Appeals, have is that this is not like a policeman happening on a speeder and waiving a finger, but institutionalizing a forgiveness program for millions of people (and what means institutionalizing more than a special form and a fee?) and providing them a lawful posture (don’t say status, unless in the 7th Circuit) which states may then have to oblige with state-paid-for amenities, like driver licenses.

The biggest problem with the argument that giving the President and Secretary of Homeland Security the authority to make policy changes that affect millions of people is a double edged sword. While the expansion of DAPA and DACA will help millions of people, suppose a new President decides to make sweeping policy changes that harm millions of people? Would people advocating for the President’s unbridled discretion still be believers in unbridled discretion?

Suppose a President Cruz (I am trying to make this an obvious hypothetical) decides that in his discretion, no person who has accrued unlawful presence in the United States shall be able to adjust status (become a permanent resident without having to leave the United States) in the United States? This could mean that thousands of people who get green cards each year through marriage to United States citizens or through very close familial relationships (child-parent, parent-child) would be barred from adjusting status. This could even mean people who applied while in status but whose status expired while the process was pending would be ineligible to adjust status,  virtually eliminating adjustment of status for everyone. Would this be executive overstepping? ICE already reserves the right to arrest people with valid adjustment of status applications for being out of status and non-immigrants cannot change or extend their statuses if not in a lawful status.

Suppose President Cruz announces that no immigration status will accrue to anyone who ever committed a violent or dangerous crime – a decision the Ninth Circuit asserts is actually the law  – would we support the President’s broad discretionary authority?

Suppose President Cruz announces that in his discretion no one will receive Deferred Action and all those with Deferred Action will have it cancelled and be deported with haste. Deferred Action is the term for the government’s policy of not deporting certain people who the government can deport. The terminally ill will be taken from their beds and deported. Those who assisted in drug prosecutions and are know to the cartels for their assistance in the arrest and prosecution of drug traffickers will be arrested and deported. Undocumented parents caring for critically ill children will be deported. No more stays of removal or special consideration outside of the deportation statutes, which say “shall” after all and in which Deferred Action cannot be found.

Suppose President Cruz announces that the government has been too lenient in granting waivers based on extreme hardship for those who accrue unlawful presence (INA § 212(a)(9)(B)) or fraud (INA § 212(a)(6)(C)), or morally turpitudinous crimes (INA § 212(a)(2)(A)(i)) and henceforth waivers should be granted rarely and only in extremely compelling situations. I could go on and on – detaining all asylum seekers (already tried), detaining indefinitely those no country will accept (already tried and rejected by the Supreme Court), detaining people whose removal cases are on appeal (already tried). In a press release, the American Immigration Counsel wrote, “Judge Stephen A. Higginson, in his dissent, got it right when he called out the ‘political nature of this dispute’ and argued that the courts have no role to play here. The courts simply cannot be a venue for anyone who disagrees with a President’s policy choice.” Do we really want strong executive authority as a general principle or only when it appeals to our policy preferences?

In this legal battle over executive authority, those who favor strong executive powers may be wise to be careful what they are asking for because they may get it. Posted May 31, 2015.


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