As bold as President Obama’s words were in announcing a dramatic new “deal” for millions of illegal immigrants, his administration’s legal justification is grounded in the policy’s timidity.
The only way to justify the president’s executive action on immigration is to ignore everything he told the nation Thursday night. He promised more than 4 million immigrants that his administration would let them “come out of the shadows,” avoid deportation, and obtain work permits and other valuable federal benefits. His lawyers told him he could do that only if his promise was illusory — only if his immigration officers retained the discretion to throw out of the country any one of his invited guests whenever and for whatever reason they wish.
This should not come as a surprise. It is merely the latest episode of the administration doing one thing and having its lawyers say something quite different. Consider the new Obama policy and its legal justification as “It’s not a tax: Take two.”
In selling the Affordable Care Act to the American people, President Obama went to great lengths to convince voters that the requirement that individuals purchase health insurance was not a tax increase. In a 2009 interview with ABC’s George Stephanopoulos, the president repeatedly pushed back against the notion that the individual mandate increased Americans’ tax burden: “I absolutely reject that notion.” Yet the individual mandate was saved from constitutional challenge only by his lawyers’ argument that the mandate was, indeed, a tax.
President Obama’s new immigration policy, which has been hailed by supporters as a major shift in federal immigration policy, is no different. The president took to the airwaves to fix what he called a broken immigration system and offer a new deal to an entire category of illegal aliens. He announced: “We’re going to offer the following deal: If you’ve with been in America more than five years. If you have children who are American citizens or illegal residents. If you register, pass a criminal background check, and you’re willing to pay your fair share of taxes, you’ll be able to apply to stay in this country temporarily without fear of deportation. You can come out of the shadows and get right with the law. That’s what this deal is.”
Shortly before his speech, the Department of Justice Office of Legal Counsel released its legal justification for the president’s new policy. What it said was that there was no deal at all. DOJ explained that “the Executive cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences.” The president cannot, under the guise of exercising his authority, abdicate the responsibility to enforce the law. In order to avoid violating the president’s constitutional obligation to “take care” that the immigration laws passed by Congress are enforced, DOJ concluded that the executive branch would have to retain the discretion to deny the new protected status to any applicant for any reason at any time, even if he met every qualification for the president’s program. The president’s policy was only constitutional, concluded DOJ, because it “provides for case-by-case determinations about whether an individual alien’s circumstances warrant the expenditure of removal resources, employing a broad standard that leaves ample room for the exercise of individualized discretion by responsible officials.” Even after the government grants protected status to an immigrant, it can revoke that status for any reason whatsoever.
So deal or no deal, Mr. President? Either the president is misleading the millions of immigrants whom he has invited to apply for protection from deportation or he is misleading the American public by claiming he is not changing the law by himself. Our money is on the latter. The Department of Justice’s legal justification for Obama’s new immigration policy is built on a false foundation of “prosecutorial,” case-by-case discretion that will never, in any circumstance, be exercised in the real world.
— Shannen W. Coffin and Michael J. Edney, partners at the Washington, D.C., law firm Steptoe & Johnson LLP, were senior lawyers in the Bush Justice Department and White House.