WASHINGTON - With his unilateral decision to reprieve hundreds of thousands of young illegal immigrants from the threat of deportation, President Obama is flexing some executive muscle that some fear is overly juiced.
In effect, Obama is doing by himself what Congress so far has spurned. He says the law is on his side. Others aren't so sure. At the very least, the Democratic president, who once criticized his Republican predecessor as overreaching, once more is pressing his own aggressive interpretation of executive branch power.
"Congress," argued Sen. Charles Grassley of Iowa, the ranking Republican member of the Senate Judiciary Committee, "has the authority to write immigration laws."
Technically speaking, the fingerprints on the deportation-pause policy announced Friday belong to Homeland Security Secretary Janet Napolitano rather than Obama. Though Obama announced the decision, he was not issuing an executive order. Rather, the policy was itemized in a three-page memo issued by Napolitano.
Citing the department's "prosecutorial discretion," the memo specifies the population of illegal immigrants that will essentially be protected from deportation: those younger than 30, those who were younger than 16 when they entered the United States and who are either students, high school graduates or veterans.
The protected population is similar to that covered by the so-called DREAM Act, legislation that has failed to pass Congress since it was introduced in August 2001. Obama's executive branch actions, though, do not go as far as the legislation.
"It is not a right to stay indefinitely; it would not grant benefits generally associated with visas [and] it would not allow students to enter or leave the country with authorization," said Raquel Aldana, a professor at the University of the Pacific McGeorge School of Law. "It could go away the moment a new administration comes in or the moment this administration decides to end it."
The executive branch's authority to defer deportation, as an act of prosecutorial discretion, is not explicitly spelled out either in regulations or in statutory law. The Immigration and Nationality Act, though, gives the Department of Homeland Security the general authority to enforce immigration laws. Federal courts, moreover, have recognized that officials can exercise their discretion in determining deportation priorities.
