Executive orders are not inherently unconstitutional. The president has the authority to issue orders to his administration instructing them how to carry out laws passed by Congress. In this sense, the president has the authority to order Immigration and Customs Enforcement to prioritize deportations by expediting removal of certain illegal immigrants while focusing less on removal of others.
However, the order President Obama announced on Thursday night, which expands the already unlawfully unilateral Deferred Action for Childhood Arrivals executive order he issued in 2012, goes a step further. DACA and the new order do not just set priorities for deportations, they exempt whole sets of immigrants of a certain age, relation, or arrival date from deportation completely. This is the authority of Congress, not the president.
The Office of Legal Council in the White House makes the point for me:
Before DACA was announced, our Office was consulted about whether such a program would be legally permissible. As we orally advised, our preliminary view was that such a program would be permissible, provided that immigration officials retained discretion to evaluate each application on an individualized basis. We noted that immigration officials typically consider factors such as having been brought to the United States as a child in exercising their discretion to grant deferred action in individual cases. We explained, however, that extending deferred action to individuals who satisfied these and other specified criteria on a class-wide basis would raise distinct questions not implicated by ad hoc grants of deferred action. We advised that it was critical that, like past policies that made deferred action available to certain classes of aliens, the DACA program require immigration officials to evaluate each application for deferred action on a case-by-case basis, rather than granting deferred action automatically to all applicants who satisfied the threshold eligibility criteria.
DACA and the new order fall under the president’s executive discretion authority only if they set the priorities by which immigration officials evaluate each case for deportation, not if they specify that certain types of cases are wholly exempted from evaluation. But since when do the details matter? DACA didn’t follow the OLC’s guidelines, and neither does the new order.
“Pass a bill,” the president decrees, lest he do it himself. Thus, the Obama Doctrine: Lack of legislative action creates executive authority. This is an entirely new and frightening (un)constitutional precedent, but really, DACA was the first and most egregious example of this, ordered in 2012 after Congress failed to pass the Dream Act the year prior.
But let us not confuse intent with process. DACA and its new expansion are worthy policies. They should be enacted through proper legislation. It was a failure of House leadership to not allow a vote on the overwhelmingly passed Senate bill last year. The cynicism exposed by Obama’s post-election executive trolling was only a reflection of Boehner’s desire to keep the issue alive for campaign fodder rather than having votes on the record and a law passed. It’s a shame that the well has been so poisoned that a real fix to the insanely broken immigration system is now all but impossible.