The precedent has already been set in 2012 following the “executive
initiative” known as Deferred Action for Childhood Arrivals (DACA) when
children brought unlawfully to the United States by their parents were granted “deferred
action” and work permit. These young people perhaps voted in the 2012 election.
Critics viewed this executive order as an “abdication of the
Executive’s duty to enforce the laws” and violated specific requirements of the
Immigration and Nationality Act (INA).
Proponents of DACA saw the executive order as lawful
discretionary authority conferred on the President by the Constitution and the
federal statute.
The authors mention President Obama’s June 2014 announcement
that he would strive “to fix as much of our immigration system as I can on my
own.” Here are some of the elements of discretionary authority the President
has as described by Manuel and Garcia:
-
The President has “broad discretion” to give
relief benefits such as work permits and temporary protected status to foreign
nationals
-
INA allows the waiver of application
requirements so that a foreign national can be eligible for benefits
-
INA gives the President “parole authority,”
allowing aliens to physically enter or remain in the country “without their
entry or presence being considered ‘admission’ for immigration purposes”
-
The Executive has a “degree of independent authority”
to decide whether to prosecute “apparent violations of federal law”
-
The Executive has “Discretion in interpreting
and applying immigration law”
Congress was granted the power to legislate under Article I
of the Constitution. Congress exercised
this power in regard to immigration by enacting the Immigration and Nationality
Act (INA). INA provides rules about:
-
Admission of foreign nationals into the U.S.
-
Conditions of continued presence in the U.S.
-
Eligibility of foreign nationals to obtain employment
and public benefits
-
Adjust immigration status
-
Become U.S. citizen
-
Mechanisms to enforce the above rules
-
Removal of aliens found in the U.S. illegally or
in violation of the authorized admission
-
Criminal penalties for immigration violations
According to the authors, INA expresses or implies some
discretionary authority on the executive branch in regards to immigration
enforcement such as:
-
Granting of “certain types of benefits or relief
to qualifying aliens who lack lawful immigration status”
-
Immigration officials waiver of certain
statutory restrictions, allowing ineligible aliens to receive immigration
benefits (via asylum, temporary protected status, or cancellation of removal)
-
The Executive can use its independent discretion
in enforcing the law
Article II of the Constitution requires the Executive to “take
Care that the Laws be faithfully executed.” The authors believe that the “executive
branch has historically been seen as having some discretion (commonly known as
prosecutorial or enforcement discretion) in determining when, against whom,
how, and even whether to prosecute apparent violations of the law.” (p. 3)
The CRS report discusses three types of discretion that the
Executive has in regards to immigration:
1.
Express delegations
of discretionary authority (granting of benefits and relief to aliens)
-
Temporary protected status to those who “cannot
be safely returned to their home countries” due to armed conflict, earthquake, flood,
drought, epidemic, environmental disaster, have been “continuously physically
present” in the U.S., and pay a “registration fee required by the executive
branch”
-
Work authorization to legally work in the
U.S. (Who will create jobs to fill the
need for the already unemployed Americans and the need of millions of illegals
with work authorization?)
-
Statutory waivers of restrictions on benefits or
relief
-
Waivers of grounds of inadmissibility (aliens
who have committed serious crimes, fraud, misrepresentation, and those previously
deported)
-
Parole (waving certain grounds of
inadmissibility; parolees can still be granted work authorization) (p. 11)
2.
Discretion
in enforcement (prosecutorial or enforcement discretion) – the Executive
can decide: “Whether to commence removal proceedings and the nature of the
particular charges to lodge against an alien”
“Whether to cancel a Notice to Appear or
other charging document before jurisdiction vests with an immigration judge”
“Whether to appeal an immigration judge’s
decision or order”
3. Discretion in interpreting and applying
statutes
If the intent of Congress is interpreted as
“silent or ambiguous,” according to the authors,” the executive branch must
fill in any ‘gaps’ implicitly or explicitly left by Congress in the course of
administering congressional programs.”
An example of such gaps is ‘derivatives,’ “noncitizen
spouses or children of alien beneficiaries, who can immigrate with the
so-called principal whom they accompany.” (p. 21)
The most important question which remains to be answered is
how many millions of illegal aliens will qualify for executive discretionary
amnesty and will be allowed to remain permanently in the United States, receive
work permits, benefits, and eventual citizenship, competing with the already
huge block of unemployed, low and high skilled Americans? Additionally, how
would such millions be absorbed seamlessly into the fabric of our society
without permanently altering the character of who we are and the respect for
the rule of law? Will they accept our culture and our language? There was
obviously no respect for our borders since they were here illegally. Will this
discretionary amnesty encourage an unstoppable chain migration?
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