January 30, 2016

OUR REPUBLICAN PRESIDENT:

Of course Obama's immigration orders are legal (Erwin Chemerinsky, 1/21/16, LA Times)

What a president certainly can do, as Obama said, is "prioritize, just like law enforcement does every day." As recently as 2012, the Supreme Court reaffirmed this principle.

In United States vs. Arizona, the court declared unconstitutional provisions of Arizona's controversial immigration law SB 1070, which allowed the state to detain immigrants who are in the country illegally. The court stressed that only the executive branch of the federal government may decide whether to detain or deport someone who is not lawfully present in the United States. On numerous other occasions, the Supreme Court and lower federal courts have recognized broad prosecutorial discretion to decide when to bring immigration enforcement actions.

Nor has any administration, Republican or Democrat, sought to deport every person who is illegally in the United States. For humanitarian reasons or because of foreign policy considerations or for lack of resources, the government often chooses to not deport undocumented immigrants.

Obama's action is based on exactly such concerns. It is simply impossible to kick out 11 million people, and it is not desirable to separate parents from their citizen children. Children without parents are much more likely to end up in foster care or on the streets or worse.

In 1986, President Reagan and Congress gave legal status to roughly 3 million undocumented immigrants. A year later, Reagan announced that minor children of parents granted amnesty were not subject to deportation. He did this without authorization from Congress.

In 1990, President George H.W. Bush promoted a "family fairness" policy that allowed an additional 1.5 million people, roughly 40% of those in the country illegally, to stay. Again, he did this without authorization from Congress. (Today, 40% of the undocumented population amounts to 4 million people, or the number Obama protected from deportation.)

The easiest option for the Supreme Court is to rule in favor of the Obama administration by dismissing the case on jurisdictional grounds. A party can sue in federal court only if it demonstrates that it has been injured.

Posted by at January 30, 2016 4:23 PM

  

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