The Administration’s Careful Review of Deportation—Is it Violating Separation of Powers or Are Its Critics Engaged in a Confusion of Powers

On June 17, 2011, the director of the U.S. Immigration and Customs Enforcement (ICE) circulated a memorandum designed to guide the inevitable exercise of prosecutorial discretion in taking legal actions to enforce the nation’s immigration laws.  The memorandum drew on similar efforts setting forth criteria for making deportation action decisions, going back to 1976 and continuing frequently during the last decade.  Among other things, the memorandum recognized that ICE “has limited resources to remove those illegally in the United States.”  (p. 2)  Centrally, it made clear that the use of such discretion “should be based on the totality of the circumstances, with the goal of conforming to ICE enforcement priorities.”  (p. 4)  Clearly, the memo sets out that the highest priority for deportation would be:  (1) those who pose a threat to national security; (2) those who have committed serious, especially violent, crime; (3) known gang members; (4) repeat immigration law offenders.  (p. 5)  It also sets forth “positive factors” that may prompt particular care and consideration, such as service in the military, status as a minor, those present since childhood, and those with serious health problems. 

Critics of the administration, in response, have contended that this memo “amounts to backdoor amnesty for hundreds of thousands—if not millions—of illegal aliens.”  (Gov. Jan Brewer, AP, Aug. 19, 2011.)   (An overstatement at best!) Others have asserted that it is “the latest attempt by this president to bypass the intended legislative process when he does not get his way.”  (Rep. Michael McCaul, AP, Aug. 19, 20011.)  An even more strenuous criticism is Senator Dean Heller’s assertion that, having failed to push the DREAM act through Congress, the President “decided to wait until we were in recess . . . to push immigration reform . . . while Congress is out and while he can take advantage of it.”  (Las Vegas Sun, Aug. 24, 2011, p. 1.)

Administration critics neglect to acknowledge that the Obama administration has dramatically increased the number of deportation actions—and hence the number of deportations—to the dismay of the Latino community.  And Senator Heller manages to omit that the memorandum that initiated, and set forth, administration policy, was distributed on June 17, 2011, well before the August 8 congressional recess.  There is absolutely no basis for the assertion that the administration deliberately waited until the congressional recess to adopt a new policy; the letter that prompted the initial news story of note was a response by Homeland Security chief Janet Napolitano to correspondence from more than twenty senators that had been written in April.  Moreover, as Napolitano wrote in the letter, the President has said on “numerous occasions” that “it makes no sense to expend our enforcement resources on low-priority cases,” such as those set forth in the memorandum.

Beyond disputes over relative details of the precise nature of administration policy, or the timing of its public presentation, it is quite clear that the administration’s action hardly constitutes “end run” around congressional policy making authority.  As noted above, administrations have articulated approaches to the use of prosecutorial discretion over deportation actions at least since 1976.  Establishing enforcement priorities is an inherently executive function; it is that branch’s task to enforce the laws.  There is something ironic about having representatives of a party that has promoted lawless executive action as to matters of national security suddenly contending that executive enforcement of the law constitutes an evasion of congressional policymaking.  Fidelity to the terms of the social contract set forth in the Constitution should not begin and end with attempting to limit the exercise of national power on federalism grounds.  

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