In the wake of Congress’ rejection of the DREAM Act in 2011, President Obama announced a halt to the deportation of undocumented immigrants that would have qualified for citizenship under the DREAM Act if passed by Congress on Friday. This announcement was met with claims of an overreach of executive power by unconstitutionally sidestepping Congress’ authority by many Republicans including Sen. Marco Rubio (R-Fla.), who is considered by many the leading voice for immigration reform within the Republican camp. In addition, many Americans also made it quite clear that they did not believe the end justified the means as expressed by the waves of articles and blogs that have hit the web in the last three days with cries of illegal nullification through executive order, and even usurpation of congress decisions through dictatorial rule by fiat. However, President Obama is innocent of such charges since the decision to administer this policy was made independently by the Department of Homeland Security rather than by the White House.
In fact, President Obama has merely announced his administration’s support of the actions of DHS Secretary Janet Napolitano. According to President Obama, Napolitano had already released a memorandum ordering the DHS to temporarily defer the deportation process for individuals who have been often been described as DREAMers. These young individuals came to the country before the age of sixteen, continuously resided in the United States for at least five years preceding the President Obama’s announcement, are educated, are men and women of service, and they are of good moral character. In an interview with ABC News, Napolitano denied that the plan was crafted at the direction of the White House saying, "It was developed within my office...." Due to the fact that this order came from an agency, this decision is well within the authority of the DHS through “prosecutorial discretion” as supported by the Supreme Court rulings in Heckler v. Chaney in 1984. Therefore, the implementation of this order is completely constitutional.
Furthermore, Janet Napolitano’s order may not even be described as revolutionary. The new policy has merely solidified present practice by Immigration and Customs Enforcement agents. In 2011, ICE Director John Morton issued a series of policy memos deemed “the Morton Memos,” ordering the agency to regularly practice ‘prosecutorial discretion’ throughout the apprehension, detention, and deportation processes of individuals who would qualify for the DREAM Act. This was supported Friday by Napolitano stating, "It was, as I said, before a logical progression from decisions we have been making over the last three, three-and-a-half years."
These memos were mandated as a means to prioritize the allocation of the agency’s insufficient resources and prevent low priority cases from even entering the system. Therefore, Napolitano’s memorandum has a goal that goes past political ends and into plain logistical logic. The agency lacks sufficient resources to fully enforce immigration laws. According to Jose Vargas in Time magazine, there are an estimated 12 million undocumented immigrants in the United States. Without anything short of concentration camps, there is no feasible means of fully enforcing our immigration laws. As a result, the DHS has decided that it would be more beneficial to concentrate its limited resources on deporting high risk individuals such as criminals and gang affiliates posing a greater threat to the nation.
So far, we have established the constitutionality of the use of ‘prosecutorial discretion’ by immigration enforcement agencies throughout the enforcement process. We have established that Secretary Napolitano’s memo merely solidifies common practice established several years ago by ICE Director John Morton in the Morton Memos. Finally, we have established the policy’s initiative to properly utilize the insufficient resources held by the DHS for immigration enforcement accomplishes a logistical necessity. However, many Americans may still feel uneasy about the fact that Congress has not once, not twice, but three times rejected the DREAM Act. It may seem as if the President is in cahoots with the DHS to overrule congressional decisions concerning the DREAM Act which is a scary slippery slope. Thankfully, this is not the case.
The purpose of the DREAM Act was to provide a path to earned citizenship for students who meet certain educational or military requirements. The DHS policy is not offering permanent residency, but merely temporary deferment and the opportunity to apply for work permits which will need to be renewed every two years. The president clearly stated, “This is not amnesty. This is not immunity. This is not a path to citizenship. This is not a permanent fix.” This policy has not been introduced on the floor and nor does it need to be due to the legality of ‘prosecutorial discretion.’
The enforcement of this new immigration policy, as well as the manner in which it was developed, is completely constitutional and in effect, this country has taken one step closer to fixing a broken immigration system.