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11/25: Does the President Have the Power to Stop All/Most Removals? (2)
Released 27 November 2013  By lluminating Immigration Law by Benach Ragland LLP

(...Continue from Part One)

In this instance, the Supreme Court seems to support Hong’s position when
it states that a decision not to prosecute or enforce is left to the
agency’s unreviewable discretion. This would support the argument that
the administration could make a decision not to enforce the Immigration &
Nationality Act. Yet, the Supreme Court did not give the President the
carte blanche to ignore the statute. “We emphasize that the decision is
only presumptively unreviewable; the presumption may be rebutted where the
substantive statute has provided guidelines for the agency to follow in
exercising its enforcement powers. Thus, in establishing this
presumption, . . . Congress did not set agencies free to disregard
legislative direction in the statutory scheme that the agency administers.
Congress may limit an agency’s exercise of enforcement power if it
wished, either by setting substantive priorities, or by otherwise
circumscribing an agency’s power to discriminate among issues or cases it
will pursue.”

As an example, the Supreme Court cited a discrimination case, Adams v.
Richardson, in which a court ordered federal education officials to
enforce portions of the Civil Rights Act of 1964. In that case, a court
determined that education officials had failed to enforce a clear
statutory directive from Congress and ordered the officials’ compliance.
It could be argued that Congress provided in the INA very specific
guidance to the executive branch about how to enforce immigration law.
The INA provides for mandatory detention of certain foreign nationals,
bars many removable individuals from all relief, and restricts
jurisdiction in federal court over agency actions. In fact, when the
President established DACA, a number of ICE bureaucrats brought suit
arguing that the INA provides a mandatory duty upon ICE to initiate
removal proceedings against all removable foreign nationals that ICE
encounters. While the ICE bureaucrats thankfully lost, they lost on an
employment law/ standing issue and the initial decisions of the judge
suggested that he accepted the bureaucrats’ claims.

Thus, while the President and his appointees have considerable discretion
in choosing how to enforce the law, it is less clear that they have the
ability to decide to suspend all removals, or even a substantial majority
of them. While principles of prosecutorial discretion– the authority of
an enforcement agency to utilize limited resources in the best way it
seems fit– legitimately empower the President to identify priorities, the
President would not seem to have the power to decide not to enforce
immigration law.

This is not to say that the President could not be bolder with his use of
his discretionary authority. DACA has been the boldest step he has taken
so far in asserting his executive authority to remedy the harsh effects of
U.S. immigration law. Could the President extend his discretion to limit
the removal of parents of U.S. citizens? Could he expand DACA to include
more people? Could he decide that no children below 16 should be removed?
This is where the legal question turns political. The anti-immigrant
right wing already believes that, despite the record number of removals,
the President is not enforcing immigration law. Should the President grow
the universe of those eligible for favorable exercises of discretion, it
is likely that whatever life remains in positive immigration reform in
Congress will evaporate immediately. As long as the promise of
immigration reform remains flickeringly alive, the President is unlikely
to antagonize his Congressional tormentors. The House GOP seems to get
that and feeds us all little scraps of “immigration reform is alive” every
now and then in an effort to stave off unilateral action.

We tend to look at our times as if the political atmosphere was never more
poisonous. That is simply not true. There have been plenty of times in
our history where a President took a very expansive view of his authority.
Andrew Jackson did it on a nearly daily basis. Lincoln utilized his
powers as commander-in-chief to imprison half of Maryland and emancipate
millions of enslaved humans. Franklin Roosevelt threatened to add six new
justices to the Supreme Court to tilt the balance on the Court to favor
his agenda. Harry Truman took over steel mills during the Korean War.
These were bold political moves in response to urgAdelantoent situations.

As the atmosphere grows more poisonous, perhaps the President will channel
his inner Jackson or Roosevelt and take these drastic steps. Perhaps Mr.
Hong’s biggest contribution was to serve as Jefferson’s “firebell in the
night” to tell the President that the situation has grown desperate. As
the President spoke, young activists, chained themselves in civil
disobedience at the Adelanto detention center in California.

As Congress fails to deliver any relief to immigrant communities, the
pressure will continue to mount on the President to take a leap of faith
and assert a robust exercise of discretion and reap whatever political
harvest is unleashed.

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