Keep New Times Free

Obama's Executive Action on Immigration Legal, No Matter What Teabaggers Say

If the White House was betting that Republicans would overreact to President Obama's impending announcement tonight on immigration, where he's expected to outline a plan that will extend deferred removal to some 5 million undocumented immigrants, boy, were they right.

For instance, Arizona Congressman Matt Salmon, proud representative of Sand Land know-nothings, is all for risking a government shutdown over the president's executive action, and has stated that Obama's move will be "unconstitutional" and an "impeachable offense."

Fox News, Rush Limbaugh, and all of the usual wingnut suspects are in full panic mode, crying for Obama's head. (You know, like normal.) And Republican U.S. Senator Tom Coburn of Oklahoma has warned darkly of "instances of anarchy" and "violence" to come from Obama's executive order.

Which should demonstrate that these GOP ninnies are not fit to run a Circle K, much less the legislative branch of the U.S. government.

Bottom line: Obama's proposed executive action, at least what we know of it at present, is 100 percent legal.

See also: -Obama Immigration Plan Could Spare 90,000-Plus Arizona Residents From Deportation

It's called "prosecutorial discretion," baby, the same principle that allows Maricopa County Attorney Bill Montgomery to go to a grand jury on animal cruelty allegations in the deaths of 20-plus dogs in the Green Acre case, but not go to a grand jury on the death of a 63-year old retired veteran, killed in a car accident by MCSO Deputy Sean Pearce.

In fact, you can thank Sean's pop, recalled former state Senator Russell Pearce, for a 2012 ruling from a conservative U.S. Supreme Court that reinforces the executive branch's "broad discretion" when it comes to immigration enforcement.

See, Pearce begat Arizona's anti-immigrant Senate Bill 1070, which brought on a challenge by the U.S. Department of Justice, which eventually resulted in the Supreme Court's decision in Arizona v. United States, striking down much of SB 1070, leaving the rest hanging by a thread.

In that decision, Justice Anthony Kennedy notes that:

"Removal is a civil matter, and one of its principal features is the broad discretion exercised by immigration officials, who must decide whether to pursue removal at all."

Kennedy further writes:

Removal is a civil, not criminal, matter. A principal feature of the removal system is the broad discretion exercised by immigration officials Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal.

Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service.

A letter sent to the White House in September, signed by almost 140 law professors, observed that prosecutorial discretion, "is a common, long-accepted legal practice in practically every law enforcement context."

The law profs essentially were telling Obama that, despite some statements by him to the contrary in the past (statements already being used by the political right to attack his action tonight), he does have the power to defer deportation for even more people than he did with his Deferred Action for Childhood Arrivals in 2012, which was aimed at helping the DREAMers.

To this point, the letter stated:

Numerous administrations have issued directives using prosecutorial discretion as a tool to protect specifically defined--and often large--classes. In 2005, the George W. Bush administration announced a "deferred action" program for foreign academic students affected by Hurricane Katrina. In 2007, the George W. Bush administration exercised prosecutorial discretion in the form of "Deferred Enforcement Departure" for certain Liberians.

In 1990, the George Bush Sr. administration announced a "Family Fairness" policy to defer deportations and provide work authorization of up to 1.5 million unauthorized spouses and children of immigrants who qualified for legalization under legislation passed by Congress in 1986. In 1981, the Ronald Reagan administration issued a form of prosecutorial discretion called "Extended Voluntary Departure" to thousands of Polish nationals.

Indeed, the centrist American Immigration Council recently released a report detailing how, since 1956, "every U.S. president has granted temporary immigration relief to one or more groups in need of assistance."

The report cited 39 such instances over the last 60 years.

Does the size of the affected population matter? Not according to the law profs in that September letter to Obama.

"Some have suggested that the size of the group who may "benefit" from an act of prosecutorial discretion is relevant to its legality," the letter states. "We are unaware of any legal authority for such an assumption. The administration could conceivably decide to cap the number of people who can receive prosecutorial discretion or make the conditions restrictive enough to keep the numbers small, but this would be a policy choice, not a legal question."

As the letter observes, it's tough for critics to make the case that Obama has not enforced our nation's immigration laws, when his administration has deported more than 2 million people in the past six years.

And as HuffPo writer Sam Stein has reported, a panel of legal scholars at a recent national convention of the Federalist Society -- which ain't no pinko outfit, mind you -- agreed that, "by and large...the president has wide legal latitude to prioritize and shape deportation laws."

So Republicans, Matt Salmon being the biggest crybaby of the lot, can wet their diapers and pound sand from here to Cancun, Obama's executive action tonight will be legal.

I Support
  • Local
  • Community
  • Journalism
  • logo

Support the independent voice of Phoenix and help keep the future of New Times free.

The more they fuss and fume, the more they look like a red-faced lot of little children, which as we head into the run-up to the 2016 presidential contest, may be exactly what the Democrats want the public to perceive.

Got a tip for The Bastard? Send it to: Stephen Lemons.

Follow Valley Fever on Twitter at @ValleyFeverPHX. Follow Stephen Lemons on Twitter at @StephenLemons.

Keep Phoenix New Times Free... Since we started Phoenix New Times, it has been defined as the free, independent voice of Phoenix, and we would like to keep it that way. Offering our readers free access to incisive coverage of local news, food and culture. Producing stories on everything from political scandals to the hottest new bands, with gutsy reporting, stylish writing, and staffers who've won everything from the Society of Professional Journalists' Sigma Delta Chi feature-writing award to the Casey Medal for Meritorious Journalism. But with local journalism's existence under siege and advertising revenue setbacks having a larger impact, it is important now more than ever for us to rally support behind funding our local journalism. You can help by participating in our "I Support" membership program, allowing us to keep covering Phoenix with no paywalls.

We use cookies to collect and analyze information on site performance and usage, and to enhance and customize content and advertisements. By clicking 'X' or continuing to use the site, you agree to allow cookies to be placed. To find out more, visit our cookies policy and our privacy policy.


Join the New Times community and help support independent local journalism in Phoenix.


Join the New Times community and help support independent local journalism in Phoenix.