only Congress has constitutional authority to establish U.S. immigration policy, and fundamental reform requires legislative action. Thus the administration’s recent announcement that deportation will be sought only for undocumented immigrants who have committed crimes in the United States violates the separation of powers and is unconstitutional.
No president, of course, can hope to expel every undocumented person in the United States — they number perhaps upward of 11 million people. Human and financial resources to identify, apprehend, process and promptly deport millions have been lacking for years as has, arguably, the political will to do so. In this environment, immigration enforcement authorities, under administrations of both parties, have performed as best they could given their resources. Still, millions have been deported over the years. And while many had been convicted of serious criminal offenses, most deportees have not been in that category.
The policy that Obama unveiled last month differs fundamentally from the spotty immigration enforcement records of previous presidents. The administration indicated that, henceforth, deportation will be focused solely on illegal immigrants who have criminal records and that no enforcement resources will be expended on those who do not pose a threat to public safety. The effect is that undocumented individuals who have avoided apprehension at the border and not been convicted of a serious offense since arriving to the United States will no longer face the prospect of deportation, the most basic means of immigration enforcement.
This goes far beyond merely prioritizing the use of limited immigration enforcement resources. And it exceeds the president’s constitutional authority by, in effect, suspending operation of the immigration laws with respect to a very large and identifiable class of offenders.
Federal agencies establish enforcement priorities because Congress rarely votes adequate monies to fully implement any federal program. Law enforcement agencies such as Immigration and Customs Enforcement properly exercise prosecutorial discretion in deciding which offenses to investigate and prosecute. That discretion ultimately resides in the president. It allows him to establish priorities — properly informed by his policy preferences — on at least two levels.
First, a president can decide to devote more resources to a particular problem — human trafficking or white-collar crime, for example — with the result that other laws or areas of concern (say, organized crime) will be less vigorously pursued and enforced. This is entirely lawful and appropriate. Presidents are elected in part to establish such priorities.
Second, law enforcement officials must make determinations whether and how to direct their efforts in individual cases. Under the manual governing U.S. attorneys, for example, federal prosecutors must consider whether there is a sufficient federal interest before pursuing a case. This involves questions such as the nature and seriousness of an offense, potential deterrent effect on others, the defendant’s record, alternatives to criminal prosecution, likelihood of success and established law enforcement priorities.