Selective enforcement.

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The Immigration Argument Everyone's Ignoring

Cass R. Sunstein is a Bloomberg View columnist. He is the author of “The World According to Star Wars” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”
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Both sides in the debate over President Barack Obama's immigration reforms have offered simple legal arguments. According to critics, the president is acting unlawfully by defying acts of Congress and arrogating the authority of a king. According to supporters, Obama is acting within his broad discretion as chief executive to deport those he thinks should be deported and let others stay in the U.S.

But the administration's own legal analysis is much subtler and more precise. The Justice Department's Office of Legal Counsel argues that the Department of Homeland Security does indeed have the authority to “prioritize” the removal of certain categories of undocumented aliens, and it can create a “deferred-action program” to let some people remain in the U.S. for a specified period. But it has to be careful about how it decides who gets to stay.

Both those conclusions depend on a judgment that the executive's actions are consistent with legislative policies. In the OLC's words, "an agency's enforcement decisions should be consonant with, rather than contrary to, the congressional policy underlying the statutes the agency is charged with administering."

Homeland Security's prioritization plan singles out three categories of undocumented aliens for deportation: 1) those who pose threats to national security or public safety, or who have been convicted of certain felonies; 2) those who have been convicted of multiple misdemeanor offenses or who have significantly abused visa programs; and 3) those who were issued a removal order in 2014. If undocumented aliens do not fall within these categories, there is a very good chance that the government will not attempt to remove them.

But this plan does not give “amnesty” to anybody. Even if they are outside the three categories, undocumented aliens remain subject to removal if public officials decide it would serve an "important federal interest” (if, for example, they have committed a series of civil offenses).

The U.S. has about 11.3 million undocumented aliens, and Congress has given the executive branch enough resources to remove fewer than 400,000 of them. In view of these sharply limited resources, Homeland Security has to make choices. The choices it has made, the Office of Legal Counsel says, are consistent with Congress’s explicit direction to “prioritize the identification and removal of aliens convicted of a crime by the severity of that crime.”

For several decades, the executive branch has created deferred-action programs for specified categories of aliens. If you qualify for such a program, you have no enforceable rights, but after an appropriate application, you can almost certainly stay in the U.S. for a certain period. You might even be able to apply for authorization to work in the country. In 2005, for example, foreign students affected by hurricane Katrina were allowed to apply for deferred action, and in 2009, some widows and widowers of U.S. citizens were given the same right.

The Office of Legal Counsel concluded that Homeland Security can confer deferred-action status on parents of U.S. citizens and lawful permanent residents. This practice can be seen as analogous to an exercise of prosecutorial discretion. It is a way of saying we're not going to devote limited resources to removing certain classes of people, because of important humanitarian concerns.

The OLC did not, however, say Homeland Security could create a deferred-action plan whenever and on whatever grounds it (or the president) might like. Rather, it pointed out that Congress itself has in the past appeared to endorse deferred-action plans -- and that this particular plan fits well with Congress’s evident concern, found in several statutory provisions, “with uniting aliens with close relatives who have attained lawful immigration status in the United States.”

The OLC also found it important that Homeland Security's program requires individual applications and "provides for the exercise of case-by-case discretion, thereby avoiding creating a rule-like entitlement to immigration relief."

But Homeland Security also proposed to create a deferred-action plan for parents of children who are in the U.S. as a result of an earlier deferred-action plan (one created in 2012 for those who immigrated here as children). The OLC found this to be a bridge too far: It would have been based not on Congress’s priorities, but on a prior deferred-action plan created by the executive branch.

To be sure, skeptics can raise fair questions about the OLC’s analysis. Deferred action goes beyond an exercise of prosecutorial discretion, and a general congressional interest in uniting family members doesn't count as clear authorization for a program of this kind. At the same time, an argument can be made that the OLC gave the president too little. In view of its severely limited resources, maybe the executive branch should be allowed to create the more expansive plan that Homeland Security proposed.

What is clear, however, is that that those who are making noisy claims about illegality and overreaching are obliged to give a close reading to what the OLC had to say. Its nuanced analysis pays careful attention to legal limits on the authority of the executive branch -- and offers a powerful argument that Homeland Security can take last week's actions without being given anything like a blank check.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Cass R Sunstein at csunstein1@bloomberg.net

To contact the editor on this story:
Mary Duenwald at mduenwald@bloomberg.net