Politics & Policy

Precedents and ‘Prosecutorial Discretion’

(Pool Image/Getty)
Some pressing questions for defenders of Obama’s unilateral executive orders

The president’s announcement last week of his executive order on immigration was fine rhetorically but entirely wrong on the facts.

He repeated, for instance, his often-expressed statement that “everyone” agrees that our immigration system is broken. That statement is untrue, because I, for one, do not know or believe that our immigration system is broken. We have the most generous legal-immigration system in the world. Each year it admits more legal permanent-resident immigrants with a clear path to full citizenship than all the rest of the world’s nations combined. We have an immigration system that’s worthy of our nation of immigrants.

What’s broken is the willingness of some Americans, especially politicians, to choose between admitting all who want to come here — which would be an immigration system with no limits — or, alternatively, enforcing a limit on how many immigrants we accept each year. If we make the latter choice, we have to turn away people, not because they’re bad people, but because admitting them would violate the limit we’ve set. And if they come anyway in violation of this limit, we have to try to deport them to enforce the limit.

That’s a binary choice: no limit at all or an enforced limit. And it’s a hard choice for many Americans, especially politicians. They can’t choose no limit, because that would be unpopular. But they also don’t want to turn away or deport any hard-working people who remind us of our own immigrant ancestors.

Faced with this quandary, President Obama and his supporters are serving up a third choice and couching it as “immigration reform,” which consists of keeping the limit on immigration on the books but not enforcing it. And when we end up with a large number of illegal immigrants, we’ll give them all amnesty. This solution might seem clever, but it’s a formula for more illegal immigration and permanent dysfunction.

How can you tell that a politician has no real policy to address the growing problem of illegal immigration? When all he talks about is maintaining border security and deporting criminals. Who’s not for that? That’s like being for motherhood and apple pie. But border security will never work by itself without policies that deter attempts to enter, such as interior enforcement, given that half or more of illegal immigrants enter legally and simply overstay their temporary visas or entry authorizations.

Critics of Obama’s unilateral executive orders say that it’s unconstitutional for the president to grant work authorization to 5 million illegal immigrants. The administration has countered by insisting that previous presidents have exercised similar power from the White House.

I contend that all the earlier precedents are quite different from President Obama’s orders. “Prosecutorial discretion” — the justification Obama is using for his orders — granted to a single beneficiary or a few beneficiaries based on the particular and unusual facts of individual cases is substantively different from a sweeping rule that changes the legal status of 5 million beneficiaries in one fell swoop.

Previous presidents have indeed exercised prosecutorial discretion in favor of groups of illegal aliens and awarded them employment authorization. But most of those cases involved the exercise of presidential authority over foreign policy, an area where the president’s power has been recognized to be substantial.

The precedent most frequently cited by those who defend Obama’s executive immigration order is a ruling on immigration by President George H. W. Bush in 1990. In this, Bush exercised prosecutorial discretion in favor of a large number of spouses and minor children of immigrants who had benefited from the immigration amnesty enacted by Congress four years earlier, in 1986. President Bush, unlike Obama, was working out the implementation of an amnesty statute already enacted by Congress. Having worked in the first Bush administration, I recall that the administration was in the middle of negotiations with Congress over what became the Immigration Act of 1990, which ratified the administration’s earlier action by creating visas for the spouses and minor children.

We might look to another precedent that applies to Obama’s executive action. In the 1952 Supreme Court decision in Youngstown Sheet & Tube v. Sawyer, known as the Steel Seizure Case, the Court ruled that President Truman did not have the authority on his own to seize a steel factory during the Korean War. Truman wished to avert a threatened work stoppage, but the Court held that he lacked constitutional authority to seize the business. Justice Jackson said in his opinion that the president’s authority is at its greatest when he acts with the express or implied consent of Congress, and it is at its lowest ebb when he acts in defiance of congressional enactments. Truman’s attempted seizure, like Obama’s action on immigration today, lacked congressional support.

Finally, I want to suggest some questions we should be asking of the Obama administration and its supporters.

First, let’s look at American workers. What is the impact of an executive order that adds 5 million or so additional workers to the labor market in America? How does that affect the job prospects of the 9 million unemployed Americans (of whom 2.9 million are long-term unemployed) and the 7 million involuntary part-time workers who want but can’t find full-time work? How does the addition of 5 million workers affect the future prospects for the 46 million Americans, almost one in six, who are receiving food stamps? And how will giving 5 million immigrants work authorization affect the groups with the highest unemployment rates? The official unemployment rate is now 5.8 percent, still high but coming down, but it’s 10.9 percent for African Americans, 18.6 percent for American teenagers, and 32.6 percent for African-American teenagers.

The American economy is growing by adding mainly part-time jobs. Wages remain stagnant, and even employed Americans feel job insecurity. President Obama says that rising income inequality is tearing at the social fabric of America. Indeed, even while wages stagnate, corporate profits are up and the stock market is hitting new record highs seemingly every week. Does adding 5 million more immigrant workers to the legal work force increase or decrease economic inequality?

Second, let’s consider the millions of people abroad who might be considering illegal immigration to the U.S. How does Obama’s granting of work authorization to 5 million illegal immigrants affect them? The poor people of the world may be poor, but they are not stupid. They are as capable as anyone else of using cost-benefit analysis to determine what is in their self-interest. If we want to deter them from illegally immigrating to the U.S., we should raise the costs of doing so — through more enforcement — and we should reduce the benefits. Conversely, if we want to encourage more illegal immigration, we should lower the costs through less enforcement and increase the benefits by providing work authorization — exactly as President Obama has just done in his executive order.

Third, we should ask, What is the impact of Obama’s executive order on qualified legal immigrants to the U.S.? Some of these recently arrived legal immigrants must now compete for jobs with the newly work-authorized 5 million. And what of the hundreds of thousands of qualified immigrants still waiting outside the U.S. for their chance to immigrate legally? The number of immigrant visas available each year is limited — some immigrants eager to come here legally have been waiting outside the U.S. for a visa for more than 20 years. How do they feel when they see that those who entered illegally as recently as five years ago are now rewarded with work authorization and prosecutorial discretion? Does the executive order make them feel like fools for respecting American law instead of violating it?

Finally, as the 2016 presidential-election cycle gets under way, we must ask every candidate to clarify his position on Obama’s executive order. If the Democrats nominate a candidate who supports and pledges to extend and expand the executive order, and if the Republicans nominate someone who pledges to revoke the executive order on the first day of his administration, the American people may have the unprecedented opportunity to vote directly on what our immigration policy ought to be.

— Jan C. Ting is a professor of law at Temple University Beasley School of Law in Philadelphia, where he teaches Citizenship and Immigration Law. He served as Assistant Commissioner of the Immigration and Naturalization Service of the U.S. Department of Justice during the administration of President George H. W. Bush.

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