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On Immigration Policy, The Law And Facts Are On Obama’s Side

Memo Pad Politics Tribune News Service

On Immigration Policy, The Law And Facts Are On Obama’s Side


By Erwin Chemerinsky and Samuel Kleiner, Los Angeles Times (TNS)

There is an adage every young lawyer learns: If you have the law, pound the law; if you have the facts, pound the facts. But if you have neither, pound the table.

The heated Republican rhetoric in response to President Obama’s immigration announcement is unquestionably table-pounding. His opponents have neither the law nor the facts on their side, so they have resorted to name calling and threats. House Speaker John Boehner (R-OH) issued a news release referring to “Emperor Obama,” while Sen. Ted Cruz (R-TX) accused him of being like a monarch and of having a “temper tantrum.” Some conservative legislators have called for censuring the president, or even initiating impeachment proceedings.

As a matter of law, however, it is absolutely clear that Obama has the authority to decide not to prosecute or deport anyone he chooses. Prosecutorial discretion is an inherent part of presidential power. The Supreme Court in United States v. Nixon declared: “The Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.”

No one believes that the federal government has to prosecute every violation of every federal crime or to deport every person who is eligible for deportation. The federal government, for example, long has not prosecuted people caught with small amounts of marijuana even though it violates the federal controlled substance act.

Choices about whether to prosecute are based on a wide array of policy considerations, including how to best allocate scarce prosecutorial resources and whether enforcing a law produces desirable outcomes. Constitutionality is another issue that can be taken into account. It is well established that the president does not have to enforce laws that he believes to be unconstitutional; indeed, to do so would violate his oath of office to uphold the Constitution. Nor does the president have to enforce laws that he believes to be unwise.

All of this is especially clear in the area of immigration policy. The Supreme Court long has recognized that immigration and deportations are closely tied to foreign policy, which is uniquely in the domain of executive power and control. The executive discretion granted by the Constitution certainly includes deciding whether to bring deportation proceedings. Throughout history, the federal government has chosen — for humanitarian concerns or foreign policy reasons — to not try to deport some individuals or classes of individuals, even though they are not lawfully in the United States.

Republican presidents have used this discretion as much as Democratic ones. In 1987, in a decidedly political move by a president who opposed the Sandinista regime, the Reagan administration took executive action to stop deportations of 200,000 Nicaraguan exiles. In 1990, President George H.W. Bush, to advance his foreign policy, stopped deportations of Chinese students and in 1991 prevented hundreds of Kuwait citizens who were illegally in the United States from being deported. In 2001, President George W. Bush limited deportation of Salvadoran citizens at the request of the Salvadoran president, ordering that deportation decisions include consideration of factors such as whether a mother was nursing a child or whether an undocumented person was a U.S. military veteran.

All of the Republican anger cannot obscure the legal reality: Obama has the authority to decide to suspend deportations. Likewise, the facts support Obama. A cruel aspect of immigration policy is that it often separates parents, who are in the United States illegally, from their children who are U.S. citizens because they were born in this country.

Nora Sandigo, in Miami, has a sticker in her car that says “Every child is a blessing.” It is a reminder for her as she drives around to pick up yet another child whose parents have been deported. Since 2009, Sandigo has taken legal guardianship of 812 U.S. citizens whose parents have been deported. “La Gran Madre” is what many call her, but she knows her limitations. “All I can do is hold back some of the bleeding. There is no way I can give 812 children the love and attention they need, but … the system is broken.”

It is estimated that there may be as many as 5 million parents in this situation. The irony is that Republican rhetoric for years has emphasized “family values,” but it is Obama who is acting in a profoundly pro-family way.
Erwin Chemerinsky is dean of the University of California, Irvine School of Law. Samuel Kleiner is a fellow at the Yale Law Information Society Project. They wrote this for the Los Angeles Times.

AFP Photo/Jim Watson

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  1. TZToronto November 24, 2014

    The law and the facts are irrelevant to the GOP and the Tea Party. All that matters to them is that it’s not “their guy” executing the laws. If they are so outraged by President Obama’s actions, let them do what they really want to do–impeach him. Let them end up with as much egg on their faces as can be thrown at them. There can be only one winner when the GOP finally does what they’ve wanted to do since January 20, 2009, and the winner will not be the GOP.

  2. Eleanore Whitaker November 25, 2014

    Does anyone else find it peculiar that when the ACA rolled out after massive ranting and raging by the GOP, these same GOP red state politicians were the first to get on board as soon as they did the math on how much the ACA would save them and their state coffers?

    If that isn’t a commentary on Republicans, I can’t imagine what more proof is needed.

    As soon as the Republicans who are now ranting and raving about immigration reform start realizing the huge savings by once and for all time, documenting undocumented workers, count on it…they’ll be on it like white on rice.

  3. James Bowen November 25, 2014

    No, this is not legal. The President nullified current law. That is not allowed. Call your members of Congress and tell them to defund this. Capitol Switchboard number is 202-224-3121.

    1. WhutHeSaid November 25, 2014

      It’s legal, and aside from that a done deal. You bigots may whine, snivel and stamp your feet all you want — but you WILL accept it. Any part of this you don’t understand?

  4. eaglesglen November 25, 2014

    Erwin missed that each illegal alien is a violation of the human rights of each American citizen per 1948 United Nations Universal Declaration Of Human Rights. Who does Erwin stand up for. I say the rest of the article is moot.

  5. eaglesglen November 25, 2014

    Why did the fed gov not tax illegals a cumulative daily tax to make it unprofitable to be an illegal in America? Of course the tax income goes to American citizens in a single account that gov does not spend. This represents compensation for abuse of America and American citizens by illegals; and more recently a gov that finds any excuse to violate American citizens human rights using illegals to deliver the abuse.
    Suppose we had theb tax on illegals back in the 1960’s and there weren’t enough illegals around to give the BIG 1986 amnesty to as it is not profitable to be an illegal in America. Well, so much for gov excuses and propaganda saying they have to abuse American citizens with another amnesty.

    1. johninPCFL November 25, 2014

      The GOP supports no new taxes, so it’s a non-starter in the House. How would they collect such a tax?

      1. EaglesGlen November 25, 2014

        Every time law enforcement bumps into an illegal, all day everyday.

  6. aloha597 November 25, 2014

    Dereliction of duty? According to some observers, @RepPaulRyan is the most open-borders member of Congress.

  7. Lt. Wolfe November 29, 2014

    More murder and mayhem from the illegal aliens invading Texas: http://cbsloc.al/VdCxwJ

  8. hannamontana80 December 2, 2014

    Illegal aliens have brought typhoid to Maryland and guinea worm to Northern Virginia.


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