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11/25: Does the President Have the Power to Stop All/Most Removals? (1)
Released 27 November 2013  By lluminating Immigration Law by Benach Ragland LLP

Does the President Have the Power to Stop All/Most Removals?

25 Nov, 2013

As official Washington administers last rites to immigration reform for
2013 only to have it pop up again with a barely detectable pulse,
undocumented immigrants and their allies continue to press the President
to use his power as the executive to suspend removals. Marches, sit-ins,
hunger strikes, and social media combat for #notonemore deportation have
reached a fever pitch as the House seems to be putting the last nail in
the coffin for the comprehensive immigration reform bill passed by the
Senate in June. A family feud exploded into the open today when activist
Ju Hong challenged the President of the United States as the President
delivered a steaming bowl of bromides to a friendly pro-immigrant crowd.
Hong challenged the President and told the President that he has the power
and the authority suspend deportations. The President engaged Mr. Hong
and said that he did not possess such authority.

So, who’s right? Is Hong right and the President can, as a function of
executive power, halt deportations? Or is the President right that he is
obliged to enforce the law and Congress must act in order to reform our
broken immigration system? The answer, like always, is very unclear. In
the President’s favor is that his constitutional obligation to “take care
that the laws are faithfully executed” prohibits his ignoring the laws
contained in the Immigration & Nationality Act. However, in Hong’s favor
is the fact that the President, through Deferred Action for Childhood
Arrivals (DACA), relief for certain widows of American citizens, and the
recent Parole-in-Place memo for military families, has already exercised
his executive authority not to enforce certain portions of the immigration
law. As Hong might argue, if the President can choose not to enforce the
law for certain sub-groups of immigrants, what is there to stop him from
expanding the beneficiaries of his grace to other groups? The question is
whether there is a difference between a limited exercise of discretion
versus a wholesale refusal to enforce the majority of the the Immigration
& Nationality Act (“INA”). Let’s also agree before we look at this that
it would be better if Congress passed a humane and comprehensive reform
that kept families together. However, as it appears that Congress has no
intention of doing that, let’s take a look at what the President could do
without Congress.

In 1984, the Supreme Court heard a case called Heckler v. Chaney. In this
case, inmates scheduled to be executed by lethal injection argued that the
lethal drugs were not being used in conformity with their use as approved
by the Food and Drug Administration (FDA) and they brought suit to compel
the FDA to take enforcement action against the sheriff’s departments that
were improperly using the drug. The Supreme Court held that the decision
to initiate, terminate or suspend enforcement proceedings were squarely
within the unreviewable discretion of the executive branch. The Supreme
Court wrote:

This Court has recognized on several occasions over many years that an
agency’s decision not to prosecute or enforce, whether through civil
or criminal process, is a decision generally committed to an agency’s
absolute discretion (citation omitted). This recognition of the
existence of discretion is attributable in no small part to the
general unsuitability for judicial review of agency decisions to
refuse enforcement. The reasons for this general unsuitability are
many. First, an agency decision not to enforce often involves a
complicated balancing of a number of factors which are peculiarly
within its expertise. Thus, the agency must not only assess whether a
violation has occurred, but 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. An agency generally
cannot act against each technical violation of the statute it is
charged with enforcing. The agency is far better equipped than the
courts to deal with the many variables involved in the proper ordering
of its priorities. Similar concerns animate the principles of
administrative law that courts generally will defer to an agency’s
construction of the statute it is charged with implementing, and to
the procedures it adopts for implementing that statute(citation
omitted). In addition to these administrative concerns, we note that
when an agency refuses to act it generally does not exercise its
coercive power over an individual’s liberty or property rights, and
thus does not infringe upon areas that courts often are called upon to
protect. Similarly, when an agency does act to enforce, that action
itself provides a focus for judicial review, inasmuch as the agency
must have exercised its power in some manner. The action at least can
be reviewed to determine whether the agency exceeded its statutory
powers (citation omitted). Finally, we recognize that an agency’s
refusal to institute proceedings shares to some extent the
characteristics of the decision of a prosecutor in the Executive
Branch not to indict — a decision which has long been regarded as the
special province of the Executive Branch, inasmuch as it is the
Executive who is charged by the Constitution to “take Care that the
Laws be faithfully executed.” U.S. Const., Art. II, 3.


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