Mini-DREAM and the rule of law

By W.W. | IOWA CITY

THANKS to new guidelines announced Friday by Barack Obama, hundreds of thousands of undocumented immigrants who came to America as children can rest easier about the threat of deportation. A memo from the Department of Homeland Security (DHS) specifies the unauthorised immigrants to whom the plan would apply:

• Came to the United States under the age of 16.
• Have continuously resided in the United States for at least five years preceding the date of the memorandum and are present in the United States on the date of the memorandum.
• Are currently in school, have graduated from high school, have obtained a general education development certificate, or are an honourably discharged veteran of the Coast Guard or Armed Forces of the United States.
• Have not been convicted of a felony offence, a significant misdemeanour offence, multiple misdemeanour offences, or otherwise poses a threat to national security or public safety.
• Are not above the age of 30.

"Now, let's be clear," Mr Obama says in his own defence, "this is not amnesty or immunity, and it is not a path to citizenship. This is not a permanent fix, but rather a temporary stop-gap measure that lets us focus resources wisely while giving a degree of relief and hope to talented, driven, patriotic young people." It's a good deal for a few untalented, sluggish, un-patriotic young people, too.

Many conservatives regard Mr Obama's announcement as an abuse of executive discretion contrary to the rule of law. John Yoo, a conservative legal theorist and stalwart supporter of expansive executive power during the George W. Bush administration, argues that Mr Obama's decision to delay the imprisonment and deportation of kids who did nothing but get born on the wrong side of a border goes too far. “President Obama's claim that he can refuse to deport 800,000 aliens here in the country illegally illustrates the unprecedented stretching of the Constitution and the rule of law", Mr Yoo writes.

Mr Obama carefully characterises the decision as a matter of priority-setting within the DHS (and not as an "executive order") about the use of scarce resources:

[I]n the absence of any action from Congress to fix our broken immigration system, what DHS has taken steps to do is focus immigration enforcement resources in the right places. We prioritized border security, putting more boots on the southern border than at any time in our history. Today, there are fewer illegal crossings than at any time in the past 40 years. We prioritized our resources and used discretion about whom to prosecute, focusing on criminals who endanger our communities rather than students who are earning their education. We've improved on that discretion carefully and thoughtfully.

Mr Yoo maintains that in this instance, "prosecutorial discretion", "the idea that because of limited resources the executive cannot pursue every violation of federal law", has been abused by the Obama administration:

The Justice Department must choose priorities and prosecute cases that are the most important, have the greatest impact, deter the most, and so on. But prosecutorial discretion is not being used in good faith here: A president cannot claim discretion honestly to say that he will not enforce an entire law—especially where, as here, the executive branch is enforcing the rest of immigration law.

In response to abstract arguments such as Mr Yoo's, Media Matters, a left-leaning media watchdog organisation, offers evidence that the DHS's decision is perfectly compatible with long-standing precedent on immigration law, which specifically allows for prosecutorial discretion on humanitarian grounds:

By 1975, Immigration Officials Were Factoring Humanitarian Considerations, Youth, And Longtime Presence In U.S. Into Immigration Cases. [In a 2009 article, Penn State law professor Shaba Sivaprasad] Wadhia stated that in 1975, the government issued instructions stating that if deportation of a person was "unconscionable because of the existence of appealing humanitarian factors," government officials should not deport that person. Other factors to consider while exercising prosecutorial discretion included "advanced or tender age" and "many years' presence in the United States." [The Role of Prosecutorial Discretion in Immigration Law, Connecticut Public Interest Law Journal, 9/21/09]

Media Matters goes on to review recent precedent for granting "deferred action" status to undocumented immigrants such as those covered by the new provision. I'm no lawyer, but it looks plausible that the new DHS guidelines accord, more or less, with past practice.

All that said, it appears that Mr Obama's own view on this matter may have recently evolved. Here he is at a town-hall meeting broadcast on Univision in 2011, saying that the president does not have the power to do something that sounds quite like what his administration has just done:

Mr Obama's move is surely motivated in part by the political need to shore up support among Hispanic voters miffed by the administration's record-setting deportation numbers. While Mr Obama's aggressiveness about deportation may lead some of us to look sceptically upon the DHS's new stop-gap, the administration's history of zealous enforcement seems to me to work in its favour in this dispute, lending considerable credibility to its claim that the new mini-DREAM scheme is consistent with precedent and not part of a larger pattern of selective disregard for America's immigration laws.

Is the discretion, both de facto and de jure, of the vast executive-branch bureaucracy inconsistent with the rule of law? It sure is. The executive branch has usurped much of the legislative branch's law-making powers, in flagrant violation of the framers' intended separation of powers. Something ought to be done about that. But what does it say about us if the fact of illegitimately expansive executive discretion is suddenly of especially great concern, now that it has been exercised in a way that will protect the prospects of hundreds of thousands of vulnerable and innocent young people? Heaven forbid a politically opportunistic abuse of executive power ever help someone!