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The President’s Solid Ground for Executive Action on Immigration

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Comprehensive immigration reform legislation would give a majority of America’s 11 million undocumented immigrants a path to citizenship and work authorization. But with immigration reform stalled in the House, President Obama announced that he plans to “fix as much of our immigration system as I can on my own, without Congress.” The President is reportedly considering deferring the deportations of up to 5 million immigrants, starting with those with families. While most columnists have supported the President’s authority to take action, a minority have accused President Obama of “rewriting the law” and called him a “domestic Caesar.”

UCLA Professor of Law Hiroshi Motomura’s report, The President’s Discretion, Immigration Enforcement, and the Rule of Law, thoughtfully argues that President Obama has broad executive authority to defer deportations, if he so chooses. Motomura concludes that the “President has the legal authority to make a significant number of unauthorized migrants eligible for temporary relief from deportation,” “similar to the relief available under the Deferred Action for Childhood Arrivals (DACA) program.”  The technical term is “administrative action”—action by the President’s administrative agencies, such as Department of Homeland Security.

At the outset, Motomura makes clear that the President is only considering temporary reprieves from deportation. The President cannot unilaterally change the rules for granting green cards or citizenship. Nor did the President “enact” the DREAM Act when he announced DACA. While the DREAM Act would provide a path to a green card and citizenship for immigrants brought to America while children, DACA only gave them a temporary, renewable two-year reprieve. Continue reading