Presidential Discretion in Immigration Policy: Deja Vu?

By Stanley Renshon on August 26, 2013

The dilemma for real immigration reformers in Congress is that that the president and the executive branch do have some degree of constitutionally mandated discretion in enforcing immigration laws.

Exactly how much is a matter of debate.

Jeffrey Anderson writing in the Weekly Standard of the president's decision not to deport young illegal aliens characterized that initiative as "pure lawlessness".

On the other hand, Ruth Marcus at the Washington Post, relying on a recent judicial opinion written by Brett Kavanaugh, a George W. Bush appointee to the federal appeals court in the District of Columbia, in the In RE: Aiken County vs. the State of Nevada case (over the failure of the Nuclear Regulatory Commission to carry out a study on the storing of nuclear waste at Yucca Mountain) comes to a different conclusion. In the opinion she cites, Kavanaugh wrote, "[U]nder Article II, the president possesses a significant degree of prosecutorial discretion not to take enforcement actions against violators of a federal law." (p. 13) On that basis, Marcus concluded that, "Obama isn't as 'lawless' as the GOP alleges."

Michael McConnell, a former U.S. Court of Appeals judge and current Stanford law professor puts his finger squarely on Congress' immigration dilemma in a Wall Street Journal article when he writes, "While the president does have substantial discretion about how to enforce a law, he has no discretion about whether to do so."

Yes. Well of course how something is done can effect whether it is done, to an important degree. That is why there has been such strong reaction to the president's varied efforts to bend the law in the direction of his own preferred interpretations and goals.

President Obama has already demonstrated his commitment to getting his own way on policy matters however, wherever, and whenever he can — if not to a law of his liking, then by revising the law administratively; then if not by law, by executive order; if not now, later.

He demonstrated this again last week when it surfaced that, "The Obama administration issued a new policy Friday that says immigration agents should try not to arrest and deport illegal immigrant parents of minor children. The move adds to the categories of people the administration is trying not to deport."

Is the president is acting within the arc of discretion granted to him in the Constitution? Or as others have said, is the president acting as if he can write his own laws?

The difficult answer is that there is no definitive answer. Yes, the president has discretion. However, the president has carried this discretionary power farther, more frequently, and in more policy areas that any president has done before.

Ed Rogers, writing in the Washington Post, put the dilemma succinctly:

[T]he fire the president is stoking through his willful flaunting of the law cannot be denied. ... The bothersome reality is that President Obama is inventing new laws, selectively choosing to enforce laws he likes and ignoring or amending the ones he doesn't. ... What is the penalty for this? How is it supposed to be investigated? We are close to uncharted constitutional territory.

Next: President Obama's Administrative Amnesties Have a Long History

Topics: Politics