The Obama administration’s decision to expand “prosecutorial discretion” in enforcing immigration laws has numerous legal precedents, and it is not an unusual way to use presidential powers.
Critics of the president’s initiative to not deport youths who were brought into the country illegally when children claim this is an abuse by the executive branch, which has taken unilateral action rather than going to Congress, as the Constitution mandates. But in the past Congress did not support the Democrats’ DREAM Act, while Senator Marco Rubio’s (R-FL) version of the DREAM Act did not even garner the support of a majority of his fellow Republicans.
At the same time, the concept of immigration officials using prosecutorial discretion and not deporting people based on factors such as humanitarian considerations, longtime presence and age goes back to 1975. In 2003, the Bush administration delegated this power for deferred action to agencies under the umbrella of the then recently created Department of Homeland Security (DHS).
As a result, DHS’ decision to broaden its deferred deportation policy-and determine its application on a case-by-case basis-is within the agency’s power.
Conservative critics who now say that the president selects which laws to respect and which to disregard, are being hypocritical. If there was a government that did not respect laws, it was George W. Bush’s. He would sign laws forbidding torture while excluding himself from complying with some of their key aspects. It is interesting that the one who provided the legal argument to expand presidential powers to authorize torture, John Yoo, today accuses Obama of exceeding his powers by expanding the “discretion” of a federal agency.
We think the criticism about the lawfulness of the White House’s action is an exclusively political reaction to an act of government that is also political and election-minded. It reflects the lack of a positive, consistent response from the opposition to a good proposal on an issue like the deportation of undocumented minors brought by their parents to the United States.