In the face of an ongoing humanitarian crisis as families are broken up by deportations, President Obama’s bold executive action is legally permissible and morally necessary. The angry Republican rhetoric is misguided both as a matter of constitutional law and as a matter of desirable social policy.
In terms of the Constitution, President Obama drew a careful distinction based on what he can and can't do without congressional action. The President cannot bestow citizenship on individuals except as authorized by law. President Obama’s executive order does not attempt to do this.
But what a president may do is set enforcement priorities, choosing who to prosecute or who to deport. No government brings prosecutions against all who violate the law. Resources make that impossible and there are laws on the books that should not be enforced. Nor has any administration, Democratic or Republican, sought to deport every person who is illegally in the United States. For humanitarian reasons or because of foreign policy considerations or for lack of resources, the government often chooses to focus deportations along certain criteria.
In fact, as recently as two years ago, the Supreme Court in United States v. Arizona recognized that an inherent part of executive control over foreign policy is the ability of the President to choose whether or not to bring deportation proceedings. On numerous other occasions, the Supreme Court and lower federal courts have recognized prosecutorial discretion to decide when to bring criminal prosecutions or immigration enforcement actions.
The overblown Republican rhetoric fails to recognize that what President Obama announced was enforcement priorities. He has instructed the executive branch, which is under his control, to prioritize deportation proceedings against felons and those who pose a public danger, but not to deport parents of young children who are United States citizens and who present no threat. Such discretion is clearly and unquestionably part of the president’s power.
Nor is there any realistic chance that any court will find otherwise. No one is likely to have standing to challenge President Obama’s policy. And even if a court were to address the issue, the law is well established that presidents have discretion to decide whether to prosecute or bring deportation actions. Contrary to the Republican rhetoric, President Obama is violating no law and is acting within his constitutional authority.