American Caesar? Not Even Close: The president has the statutory authority he needs to expand deferred action

Since a major reform of the immigration system is dead politically for the foreseeable future—and also in light of the debacle last week in Congress, where our legislative branch was unable to pass a law to fund managing the flow of Central American child migrants arriving at the southwest U.S. border—President Obama is reportedly considering a number of reforms he can implement under his executive authority, and he briefly addressed his willingness to do so last night. The most important action being considered is the granting of deferred action—i.e., placing potentially millions of unauthorized immigrants residing in the United States at the bottom of the priority list for deportation. According to multiple reports, the most likely beneficiaries will be some share of those who can show they have not committed any crimes, have close family ties to U.S. citizens, and have resided in the United States for a minimum length of time. The size of this population is estimated to be in the range of 4 to 5 million.

The debate about the legality of such a move by President Obama, which would (importantly) also include granting work authorization (issuing an employment authorization document or “EAD”) to unauthorized immigrants receiving deferred action, is heating up on the right and the left. But most of the commentary has missed one important fact, namely that President Obama has broad statutory legal authority under the Immigration and Nationality Act (INA) to grant employment authorization to anyone he chooses. Thus, while the authority to grant deferred action to unauthorized immigrants rests on the president’s prosecutorial discretion, which allows him to decide who he will enforce the law against, the authority to grant an EAD is plainly and clearly set out in the law.

This is important, because in Sunday’s New York Times, Ross Douthat calls President Obama’s possible (but not yet announced) upcoming executive actions on immigration “domestic Caesarism,” which he claims is not justified simply by “Republican intransigence” on immigration. Douthat notes in a follow-up blog post that Obama’s deferred action for childhood arrivals (DACA), which has granted deferred action and work permits to about 500,000 young unauthorized immigrants who entered the United States before 2007, was objectionable, but less so, because Douthat sees it more as “working around the edges” of immigration law, but that jumping to granting 5 million work permits would be “dubiously legal” and require greater scrutiny. Eric Posner and Brian Beutler in the New Republic, Reihan Salam in the National Review, Ezra Klein in Vox, and Jonathan Bernstein in Bloomberg View have all engaged thoughtfully with Douthat on the law and politics surrounding deferred action, but the importance of INA Section 274A(h)(3) is not fully explored in any of their commentaries; in particular, subsection (B):

“(3) Definition of unauthorized alien. -As used in this section, the term “unauthorized alien” means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General.” [The Attorney General’s power here was transferred to the Secretary of Homeland Security after the creation of the Department of Homeland Security (DHS). Emphasis added.]

Subsection (B) admittedly almost looks like a throwaway line, but it’s a plain and fair reading of (B) to say that there are two routes for someone to receive employment authorization: either through explicit authorization in the INA or if the DHS secretary (a proxy for the president) says so, as long as there does not exist an explicit statutory prohibition. There’s a long list of regulations at 8 CFR § 274a.12 setting out the different “Classes of aliens authorized to accept employment,” which includes unauthorized immigrants who have received parole or deferred action. Those regulations derive their legal authority from INA § 274A(h)(3)(B). The authority to promulgate such regulations was challenged through the administrative process in 1987, but the argument was rejected. The result is that the DHS secretary has the authority to grant employment authorization via regulation under this statutory section.

It may seem odd that no additional constraints are put on the DHS secretary in this regard, and it’s not clear to me that Congress intended to grant the executive branch this much authority (you’ll have to ask the 1986 Congress), but the language and result are clear. In 2011, then-chairman of the House Judiciary Committee Lamar Smith (R-Texas) introduced H.R. 2497, the “Hinder the Administration’s Legalization Temptation” Act (the “HALT Act”), which would have repealed the DHS secretary’s authority to grant EADs to anyone the secretary deems appropriate. But the HALT Act never got any further than a House Subcommittee hearing. Having granted the president this authority and then having chosen not to repeal it, Congress is in no position to complain about the president’s right to use  it.

This matters because—completely separate from the issue of deferred action—it presents the president with an alternative means to achieve the same ends. He could, for example, promulgate a regulation allowing all aliens to apply for an EAD if they can demonstrate that they: 1) have not committed any serious crimes; 2) have been continuously residing in the country for at least 5 years; and 3) have an immediate relative (spouse or child) who is a U.S. citizen. After being granted an EAD, but without being granted deferred action, these unauthorized immigrants would still be deportable, but could legally work in the United States. That, it seems to me, would be clearly legal, although admittedly an undesirable result because people who could legally work in the country could still be deported. That would allow employers to threaten their unauthorized immigrant employees with deportation if they ever ask for a raise or complain about unpaid wages or unsafe working conditions (even more than they do now, that is, because immigrants would have even more at stake). However, on the other hand, under the Morton Memos, which set out the administration’s deportation priorities, those EAD-holders (who would necessarily already have clean criminal records, a lengthy period of residence in the United States, and U.S. citizen immediate relatives), would be so far down on the list of deportation priorities, that they’d be unlikely to be deported from the interior. This wouldn’t be the same as having an official grant of deferred action, but they could be reasonably certain that they would not be detained and deported. I think this is a less-likely scenario, but it is a legal one.

A few points should be highlighted about the president’s prosecutorial discretion because Obama and his advisors are now mulling over an important question: At what point does deferred action go from being prosecutorial discretion to simply not enforcing the law? The line exists somewhere, but I don’t think the president is considering crossing it.

The president has constitutional and statutory powers he can use to keep certain unauthorized immigrants in the country, for example, by granting pardons to unauthorized immigrants, or “parole” under INA § 212(d)(5)(A), or “deferred enforced departure” under the foreign affairs power in the Constitution. But it still makes the most sense for the president to use his prosecutorial discretion to enforce the law and create a new deferred action program like DACA for a specific subset of the unauthorized immigrant population. Here’s why: According to a former director of U.S. Immigration and Customs Enforcement, Congress only appropriates enough funds to deport 400,000 unauthorized immigrants from the United States each year, which is roughly about 3.4 percent of the total population of 11.7 million. As a result, it is rational and efficient enforcement policy to set priorities regarding who should be sent home first. To me, this would be an obvious example of the president using prosecutorial discretion (and I am intentionally using and/or twisting Reihan Salam’s words here) as “a tool to allow the executive branch to achieve statutory objectives, not as a tool for changing policy.” The statutory objective is the deportation of unauthorized immigrants, coupled with the appropriations reality (reflecting Congress’s budgetary and enforcement priorities) of being able to deport 400,000 per year.

There would also be a significant public benefit: unclogging the overloaded immigration courts. And millions of U.S. citizens would benefit by not being separated from their spouses and children. That’s why it’s difficult to understand why it is so objectionable—indeed why Douthat and others consider it to be imperial-esque “Caesarism” or “lawless, reckless,” and “a leap into the antidemocratic dark”—for Obama to specify that 30 to 40 percent of the 96.6 percent of unauthorized immigrants that are not deported every year will be the last on the list to be sent home. The administration will still be doing a lot of deporting! In fact, with 6 to 7 million deportable immigrants left to find and deport, it’s doubtful that annual levels of deportations would even decline at all. And the president is well within the bounds of the law—explicitly authorized by the law, that is—to grant employment authorization to those unauthorized immigrants who are on the bottom of the deportation priority list so they can continue working, paying taxes, and contributing to the economy.