10 Immigration Agents Challenge Obama Administration’s Non-Deportation Policy
John G. Malcolm /
As described in a new Heritage Issue Brief, 10 Immigration and Customs Enforcement (ICE) officers have filed a lawsuit against Secretary of Homeland Security Janet Napolitano and ICE director John Morton.
The suit seeks to invalidate the Administration’s recently implemented “deferred action” initiative, which defers for at least two years the removal of an estimated 1.76 million illegal alien minors and young adults who meet certain eligibility requirements. The Administration has defended this initiative as an exercise of “prosecutorial discretion.”
Imagine the uproar if a President were to announce that he was exercising “prosecutorial discretion” by directing Internal Revenue Service agents and federal prosecutors not to investigate or prosecute those who fail to pay capital gains taxes.
President Obama tried and failed on multiple occasions to persuade Congress to pass the DREAM Act. Just last year, he told a group of Hispanic activists that he lacks the constitutional authority to implement the DREAM Act by executive fiat: “The idea of doing things on my own is very tempting, I promise you, not just on immigration reform. But that’s not how our system works. That’s not how our democracy functions.”
President Obama is now attempting to effectively implement most of the DREAM Act through this new initiative, thereby undercutting the legislative process and eroding respect for the rule of law.
The plaintiffs allege that deferred action has traditionally been used for the benefit of a small number of aliens facing unusually distressing situations (such as those who would be removed to countries devastated by civil war or natural disasters) for limited periods of time. They also allege that in passing the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Congress sought to reduce executive discretion when it comes to enforcing federal immigration laws.
The plaintiffs claim that they have been placed in the untenable position of having to choose between following a directive that violates federal law or facing disciplinary action if they refuse to comply.
The plaintiffs face an uphill battle regardless of how abusive this new initiative may be in terms of violating the spirit—if not the letter—of the Constitution’s separation of powers, as well as the executive’s obligation to “take Care that the Laws be faithfully executed.” Although the challenge is by no means frivolous, a court may be reluctant to conclude that the plaintiffs have standing. Even if they are able to establish an “injury in fact,” a court may be tempted to cite prudential standing rules in order to avoid reaching the merits.
Additionally, even if a court concludes that the plaintiffs have standing, courts have shown great reluctance to intrude in areas where agencies have traditionally exercised a great deal of discretion, such as enforcement or non-enforcement decisions. The Supreme Court has on prior occasions also stated that, absent extraordinary circumstances, exercises of prosecutorial discretion by federal agencies should not be subject to judicial review.
Although understandably aggravated, the plaintiffs may well have a difficult time prevailing. Furthermore, given the significance of this issue, Congress ought to weigh in and not wait for the issue to bubble up through the court system.
Either way, this standoff will most likely be resolved in a political forum rather than in a court of law. As stated by Heritage’s Jessica Zuckerman, “Any hope for true solutions to our nation’s immigration challenges should begin with respecting the rule of law.”