The Legality of a Short-Term Solution to the Long-Term Problem of Immigration

Sydney Winkler
COL ’16

There has been much controversy surrounding President Obama’s most recent executive action. It will expand the deferred program, also known as DACA, to parents of U.S. citizens and legal permanent residents. The program is poised to give temporary legal status to over 4.3 million illegal immigrants. While seemingly large in scope, one must also consider that the overall number of unauthorized immigrants is larger than in the past. Despite this fact, the vastness of the program has caused Congressional Republicans to ask whether the executive action is within the President’s jurisdiction. The left wing unsurprisingly disagrees and points to past presidential Administrations as examples of the justification of executive action. It is essential to determine what the President has the authority to do and what is outside of the executive branch’s power. After careful examination of the law, it is clear that the President is within his bounds by giving temporary legal status, not a path to citizenship, to parents of citizens in the U.S. or permanent residents.

Conditions of the Executive Action

President Obama signed an executive action on November 20, 2014 that will expand the deferred program to parents of immigrants who currently have legal status in the U.S.[1] Those eligible to apply for the new program must have arrived in the U.S. before 2010 and arrived in the U.S. under the age of 16, an expansion of the Deferred Action for Childhood Arrivals (DACA). Temporary legal status will also be granted to those who arrived in the U.S. before 2010 and have at least one child who is a U.S. citizens or legal resident, under the Deferred Action for Parents (DAP).[2] On a less publicized note, the Obama Administration also announced an expansion of legal immigration for skilled workers. This aspect could affect over 150,000 people moving to the U.S. to find work. Finally, the executive action also called for a revamping of the Secure Communities program, which uses local jails to enforce immigration laws and turn over undocumented immigrants to federal authorities. An important point to make about President Obama’s executive action is that does not propose granting legal status to unauthorized immigrants. In actuality, the president is giving them the opportunity to apply for deferred action, defined as protection from deportation for a certain amount of time, and this protection is only issued for three years.[3] Unauthorized immigrants who are given deferred action will only gain a work permit, not legal status or a path to citizenship.

Examination of the Immigration and Nationality Act of 1965

The Immigration and Nationality Act of 1965 governs over immigration to and citizenship of U.S. Citizens. This act amended the INA of 1952, abolishing the national origins question system. It was replaced with a preference system that focused on keeping together families and utilizing immigrants’ skills. The Immigration and Nationality Act of 1952 act defined three types of immigration: immigrants with special skills or relatives of U.S. citizens, average immigrations, and refugees.[4] Along these lines, it does not seem like too far of a stretch for the Obama Administration to justify deferred action for immigrants who are relatives of U.S. citizens and high-skilled immigrants. Since the executive action provides benefits for both groups, the Administration is also able to make the case for humanitarian reasons as well as economic reasons.

The Obama Administration’s Argument

In a 33-page memo, the Justice Department’s Office of Legal Counsel lines out President Obama’s authority in this matter. The crux of their argument falls on the idea of prosecutorial discretion.  It points out, “Since the INA was enacted, the Executive Branch has on numerous occasions exercised discretion to extend various forms of immigration relief to categories of aliens for humanitarian, foreign policy, and other reasons.”[5] The memo points the history of administrations that have also previously used executive action for immigration. For example, Jimmy Carter granted legal status to immigrants through the 1966 Cuban Adjustment Act. Furthermore, Ronald Reagan also signed the Immigration Reform and Control Act to grant amnesty to about 3 million unauthorized immigrants. Finally, George H. W. Bush granted deferral of deportation and eventually amnesty to 1.5 million immigrant children and spouses of U.S. citizens.

Furthermore, enforcement authority is vested in the executive branch. For example, the president has a constitutional duty “take care that the laws be faithfully executed.”[6] The Supreme Court case, Heckler v. Chaney, also recognizes that the faithful execution of the law does not necessarily entail acting “against each technical violation of the statute” that an agency is charged with enforcing.[7] This means that the president does not have to enforce every part of the law, within certain boundaries.

The memo argues that, if the president indeed does go past his authority, then “when Congress has been dissatisfied with Executive action, it has responded, as Chaney suggests, by enacting legislation to limit the Executive’s discretion in enforcing the immigration laws.”[8] The Heckler v. Chaney (1985) decision argued that initiating enforcement proceedings is complex and calls on the agency to balance “a number of factors which are peculiarly within its expertise.”[9] Factors include “whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency’s overall policies, and, indeed, whether the agency has enough resources to undertake the action at all.”[10] The memo argues that the principles of enforcement outlined in Chaney apply to immigration since Congress enacted the INA with the understanding that immigration is a field that demands flexibility due to the variable conditions of the program.

The memo also acknowledges that the President does not have the authority to “attempt to effectively rewrite the laws to match its policy preference.”[11] Furthermore, the sustainability of an immigration policy like such rests in the political arena and in the hands of Congress. It doesn’t fail to point out though that the Homeland Security Act of 2002 transferred administrative services and enforcement of immigration laws to the Department of Homeland Security in Section 430, Subtitle D.[12]

Argument from the Republican Side

While Congressional Republicans will acknowledge that past presidents have undertaken executive actions on immigrations, they argue that these actions were on a much smaller scale. Presidents, dating back to Dwight D. Eisenhower, have granted relief to immigrants who were vulnerable to deportation. For example, Eisenhower allowed hundred of foreign-born orphans to come to the U.S. with their adoptive parents, through an executive action in 1956.[13] Thus, while President Obama has a partial legal basis for the Administration’s action, the action has extended beyond his jurisdiction. Republicans, however, argue that those actions were on a much smaller scale. In late October, Republican National Committee chair Reince Preibus promised a lawsuit against the president if he were to take executive action.[14] Legal scholars are now saying that a lawsuit is unlikely, given the carefulness of the Department of Justice’s Office of Legal Counsel.


When it comes to immigration, the executive branch has a lot of authority to decide who to deport and who not to deport. As shown above, the Department of Homeland Security’s proposed prioritization policy and its proposed deferred action program for parents of U.S. citizens and lawful permanent residents would be legally permissible, given the president’s constitutional duty and the way the Supreme Court has ruled in the past. The proposal also aligns with previous action that Congress has taken and therefore is consistent with current immigration law and with congressional understandings of permissible uses of deferred action.  The DHS and Department of Justice’s Office of Legal Counsel also acknowledge that the proposed deferred action program for parents of DACA recipients would not be permissible, in order to be consistent with Congressional action and not leave deferred action open to any illegal alien. There are important limits to President Obama’s executive action that many should further examine. Overall, the proposal is a temporary executive answer to a problem that will eventually need long-term reform by the legislature in order to truly solve the problem.


[1] U.S. Department of Justice, “The Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others” (Washington, D.C., 2014), 26




[5]Op. cit., U.S. Department of Justice, p 6

[6] U.S. Const. art. II, § 3

[7] Heckler v. Chaney, 470 U.S. 821, (1985).


[9]Op. cit., Heckler v. Chaney

[10] Id.

[11]Op. cit., U.S. Department of Justice, p 6

[12] Homeland Security Act of 2002, Pub. L. No. 107-296, 107th Cong., 1st Sess. (November 25, 2002) LexisNexis Academic.



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