The President’s Discretion, Immigration Enforcement, and the Rule of Law

"The President has the legal authority to make a significant number of unauthorized migrants eligible for temporary relief from deportation that would be similar to the relief available under the Deferred Action for Childhood Arrivals (DACA) program. The reasons include three main points:

1. The President is only considering temporary reprieves. He would not be unilaterally changing the rules for granting permanent residence or citizenship. Decisions about whether and when to grant temporary reprieves are part of the prosecutorial discretion that the President must exercise as the executive branch official ultimately in charge of enforcing immigration law.

2. The U.S. immigration system is one of selective admissions that has historically not met the U.S. economy’s needs for an adequate labor force. Unauthorized migrants are a significant share of the workers who are essential to the economy. Congress funds enforcement capacity at a fraction of what would be needed to reduce the unauthorized population significantly. As a consequence, immigration enforcement is necessarily selective. In effect, Congress has created and funded a system that relies heavily on prosecutorial discretion, especially on enforcement priorities and a system for applying them.

3. The President, in order to respect the rule of law in exercising prosecutorial discretion, must make sure that discretionary decisions to apply enforcement priorities are uniform, predictable, and nondiscriminatory. One permissible approach is to adopt prosecutorial discretion guidelines, as the Obama administration did in 2011. The DACA program reflected a decision—fully within the President’s legal authority—to go beyond mere guidelines to adopt a formal process for ensuring that the priorities were carried out consistently, predictably, and without discrimination. Likewise, the President has the legal authority to extend temporary administrative relief to a wider circle of noncitizens, as long as he is exercising his discretion to administer enforcement priorities." - Prof. Hiroshi Motomura, Aug. 26, 2014.