As President Obama is getting ready to make his announcement on immigration tonight, the Congressional Research Service is advising Congress through legislative attorneys, Kate M. Manuel and Michael John Garcia "on the scope of the Executive's discretionary authority over immigration matters, including with respect to the enforcement of immigration-related sanctions and the granting of immigration benefits or privileges." ("Executive Discretion as to Immigration: Legal Overview," November 10, 2014, R43782)

The precedent has already been set in 2012 following the "executive initiative" known as Deferred Action for Childhood Arrivals (DACA) when children brought unlawfully to the United States by their parents were granted "deferred action" and work permit. These young people perhaps voted in the 2012 election.

Critics viewed this executive order as an "abdication of the Executive's duty to enforce the laws" and violated specific requirements of the Immigration and Nationality Act (INA).

Proponents of DACA saw the executive order as lawful discretionary authority conferred on the President by the Constitution and the federal statute.

The authors mention President Obama's June 2014 announcement that he would strive "to fix as much of our immigration system as I can on my own." Here are some of the elements of discretionary authority the President has as described by Manuel and Garcia:

  • The President has "broad discretion" to give relief benefits such as work permits and temporary protected status to foreign nationals
  • INA allows the waiver of application requirements so that a foreign national can be eligible for benefits
  • INA gives the President "parole authority," allowing aliens to physically enter or remain in the country "without their entry or presence being considered 'admission' for immigration purposes"
  • The Executive has a "degree of independent authority" to decide whether to prosecute "apparent violations of federal law"
  • The Executive has "Discretion in interpreting and applying immigration law"

Congress was granted the power to legislate under Article I of the Constitution. Congress exercised this power in regard to immigration by enacting the Immigration and Nationality Act (INA). INA provides rules about:

  • Admission of foreign nationals into the U.S.
  • Conditions of continued presence in the U.S.
  • Eligibility of foreign nationals to obtain employment and public benefits
  • Adjust immigration status
  • Become U.S. citizen
  • Mechanisms to enforce the above rules
  • Removal of aliens found in the U.S. illegally or in violation of the authorized admission
  • Criminal penalties for immigration violations

According to the authors, INA expresses or implies some discretionary authority on the executive branch in regards to immigration enforcement such as:

  • Granting of "certain types of benefits or relief to qualifying aliens who lack lawful immigration status"
  • Immigration officials waiver of certain statutory restrictions, allowing ineligible aliens to receive immigration benefits (via asylum, temporary protected status, or cancellation of removal)
  • The Executive can use its independent discretion in enforcing the law

Article II of the Constitution requires the Executive to "take Care that the Laws be faithfully executed." The authors believe that the "executive branch has historically been seen as having some discretion (commonly known as prosecutorial or enforcement discretion) in determining when, against whom, how, and even whether to prosecute apparent violations of the law." (p. 3)

The CRS report discusses three types of discretion that the Executive has in regards to immigration:

  1. Express delegations of discretionary authority (granting of benefits and relief to aliens)
  • Temporary protected status to those who "cannot be safely returned to their home countries" due to armed conflict, earthquake, flood, drought, epidemic, environmental disaster, have been "continuously physically present" in the U.S., and pay a "registration fee required by the executive branch"
  • Work authorization to legally work in the U.S. (Who will create jobs to fill the need for the already unemployed Americans and the need of millions of illegals with work authorization?)
  • Statutory waivers of restrictions on benefits or relief
  • Waivers of grounds of inadmissibility (aliens who have committed serious crimes, fraud, misrepresentation, and those previously deported)
  • Parole (waving certain grounds of inadmissibility; parolees can still be granted work authorization) (p. 11)
  1. Discretion in enforcement (prosecutorial or enforcement discretion) – the Executive can decide: "Whether to commence removal proceedings and the nature of the particular charges to lodge against an alien"

"Whether to cancel a Notice to Appear or other charging document before jurisdiction vests with an immigration judge"

"Whether to appeal an immigration judge's decision or order"

  1. Discretion in interpreting and applying statutes

If the intent of Congress is interpreted as "silent or ambiguous," according to the authors," the executive branch must fill in any 'gaps' implicitly or explicitly left by Congress in the course of administering congressional programs."

An example of such gaps is 'derivatives,' "noncitizen spouses or children of alien beneficiaries, who can immigrate with the so-called principal whom they accompany." (p. 21)

The most important question which remains to be answered is how many millions of illegal aliens will qualify for executive discretionary amnesty and will be allowed to remain permanently in the United States, receive work permits, benefits, and eventual citizenship, competing with the already huge block of unemployed, low and high skilled Americans? Additionally, how would such millions be absorbed seamlessly into the fabric of our society without permanently altering the character of who we are and the respect for the rule of law? Will they accept our culture and our language? There was obviously no respect for our borders since they were here illegally. Will this discretionary amnesty encourage an unstoppable chain migration?

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