Immigration lawyers, constitutional lawyers – just about any lawyers with an interest in public and private affairs will be analysing and debating the planned action by President Obama to protect over stayers and others without immigration documentation to remain in the US.
For starters there is the question of his authority to do so – one major area of controversy.
Second, there is the sheer magnitude of what he is proposing which, as Temple University law professor Peter J Spiro told the New York Times, is “arguably unprecedented”.
To support his dramatic stance, the President used a 33 page Justice Department memo outlining the legal basis for his plan, which opens a major area of debate over the balance of the law and executive power.
There is, however, precedent, as the Times says:
Although Mr. Obama is not breaking new ground by using executive powers to carve out a quasi-legal status for certain categories of unauthorized immigrants — the Republican Presidents Dwight D. Eisenhower, Ronald Reagan and George H. W. Bush all did so — his decision will affect as many as five million immigrants, far more than the actions of those presidents. Mr. Obama’s action
Certainly the plan will reopen the wounded relationship the president and his party have with the Republicans.
And what of the memo?
White House officials and a broad array of legal experts assert that the president’s directive, announced Thursday night in a prime-time address to the nation, rests on firm legal ground. As chief executive, they say, Mr. Obama has virtually unfettered “prosecutorial discretion” to decide when he will prosecute criminal infractions and when he will not.
They also say that because Congress does not appropriate nearly enough money to deport all of the 11 million undocumented immigrants estimated to be living in the United States, the president is obligated to choose whom he deports, so he cannot reasonably be accused of usurping lawmakers’ authority or failing to execute the law.
“The key is that the president’s actions will still leave millions of undocumented immigrants to go after, and that will be with resources appropriated by Congress that still make barely a dent in the remaining population,” said Stephen H. Legomsky, a Washington University law school professor who was chief counsel of the United States Citizenship and Immigration Services from 2011 to 2013.
Still, some lawyers critical of Mr. Obama argue that by publicly grouping a large number of undocumented immigrants who are not subject to American law and granting them a special status, the president has gone far beyond the limits of prosecutorial discretion and crossed the line into legislative fiat.
“This action certainly looks a lot more like, ‘I’m changing the rules of the game,’ rather than ‘I’m just choosing not to exercise my discretion,’ and that runs counter to Congress’s power to decide what the law is,” said Shannen W. Coffin, a Justice Department lawyer under President George W. Bush who was counsel to Dick Cheney when Mr. Cheney was vice president. “It’s highly questionable as a constitutional matter.”