William M. Leiter
Illegal immigrant
advocates see the large undocumented population in the U.S. (estimated
at some eleven million) as worthy of affirmative action, particularly because
to a significant degree they are invited to this country through American offered
economic opportunities. Affirmative action preferences are sought to thwart the
disparate impact which American society imposes: e.g., discriminatory working
conditions; racial profiling; and a life in the shadows fearing deportation. President
Obama has promised assistance in connection with deportation. In the 2008 campaign,
he attacked deportation harshness and promised to make reform a priority
saying, “When communities are terrorized by ICE [Immigration and Customs
Enforcement agency] immigration raids, when nursing mothers are torn from their
babies, when children come home from school to find their parents missing, when
people are detained without access to legal counsel, when all that’s happening,
the system isn’t working.”[1] However, the Obama
Administration deportation policy--using executive authority--has exhibited a
dramatic variety of aggressiveness and liberality, raising the constitutional
issue as to capacity of the president’s executive authority to shape
deportation policy. What we have in this connection is a challenge to the
Constitution’s Article I delegation of “all” legislative authority to the Congress
of the U.S.
Such challenges are quite common in this “age of the executive” where much or
most of the law is made not by the legislature, but by administrators in the
executive branch.[2]
In short, to what degree may the executive branch separate itself from the
separation of powers dictated by the U.S. Constitution where lawmaking is
allocated to Congress, and where the president is required to bind the
executive branch to the “faithful execution of the laws.”[3] Do modern circumstances
require the abandonment of the Constitution’s separation of powers scheme? If
not, what is the role of the Congress? These are old questions, and this paper
will restrict itself to deportation policy.
The
President’s Prosecutorial/Enforcement Discretion
Presidents and their
executive-branch officers (using the president’s authority) have nearly
complete discretion to prosecute people for violating U.S. criminal
and civil laws. This clemency capacity is authorized by the Constitution’s Article
II authorization to grant reprieves for all offenses against the U.S., and also
supported--in a seemingly contradictory fashion--by the Article II requirements
that the president supervise the bureaucracy, and “take care the laws be
faithfully executed,”[4] meaning that presidents
are to determine what the dictates of good faith require in the way of
executing the laws. Congress has augmented this discretionary authority in
deportation law. This law makes deportable all noncitizens whose presence in
the United States is not authorized,[5] but the continual failure
of Congress to fully fund the fulfillment of this extraordinary requirement involving
the removal of some 11.5 million (about 30% of all noncitizens) from the U.S.
requires the executive branch to set priorities.[6]
Some two million
persons have been deported during the Obama Administration, a record high for
presidential administrations. Initially, the policy of the Administration was
quite hardline and was designed to assure the GOP that the border was really
secure. Republicans insisted upon border
security as a precondition for a “comprehensive” immigration reform statute
permitting large numbers of illegals to stay in this country without fear of
deportation. After its first two years, the Administration’s deportation policy
proclaimed that its prosecutorial discretion would be used to prioritize
expelling hard-core criminals, but that policy has had limited success.[7] The problem, in part, was
a failure of a large number of federal field officials to adhere to the Obama
Administration’s new softer deportation policy.[8] The union representing
some 7,000 ICE employees has opposed the Administration’s felony, criminal-offender
prioritization, arguing that it frustrated the ICE’s core mission of enforcing
the nation’s immigration laws.[9] An extensive New York
Times analysis of governmental records—published on April 7, 2014, noted that
two-thirds of the nearly two-million deportees during the Obama years involved
individuals who had either no criminal records or had minor infractions on
their records like traffic violations which included driving without a license.
Only 20% of those expelled had been guilty of major felonies such as drug
offenses.[10]
In short, this New York Times analysis challenged the accuracy of the
President’s insistence that his Administration was going after “criminals, gang
bangers, people who are hurting the community, not after students, not after
folks who are here just because they’re trying to figure out how to feed their
families.”[11]
Subject to severe criticism
from immigrant-rights advocates, the President, in mid-June, 2012, during Rose
Garden remarks, announced that some 800,000 to 1.76 million young, qualifying,[12]
overwhelmingly Hispanic illegals[13]
would be freed from the oppressiveness of statutorily required deportation
through the exercise of the President’s prosecutorial discretionary reprieve
power meant to prevent a disparate impact frustrating the capacity of a
minority group’s youth to prosper. Skirting a deliberative-democracy
opportunity, the President said:[14]
In
the absence of any immigration action from Congress to fix our broken
immigration system, what we’ve tried to do is focus our immigration enforcement
resources in the right places. . . . We've improved on that discretion
carefully and thoughtfully. Well, today,
we're improving it again. Effective immediately, the Department of Homeland
Security is taking steps to lift the shadow of deportation from these young
people. Over the next few months,
eligible individuals who do not present a risk to national security or public
safety will be able to request temporary relief from deportation proceedings
and apply for work authorization. Now, let's be clear -- this is not amnesty,
this is not immunity. . . . It is --
Q (Inaudible.) THE PRESIDENT: -- the right thing to do.
Q -- foreigners over American workers.
THE
PRESIDENT: Excuse me, sir. It's not time for questions, sir.
Q No, you have to take questions.
THE
PRESIDENT: Not while I'm speaking.
Precisely
because this is temporary, Congress needs to act. There is still time for Congress to pass the
DREAM Act this year, because these kids deserve to plan their lives in more
than two-year increments. . . . And as
long as I’m President, I will not give up on this issue, not only because it’s
the right thing to do for our economy -- and CEOs agree with me -- not just
because it’s the right thing to do for our security, but because it’s the right
thing to do, period. . . . And the
answer to your question, sir -- and the next time I’d prefer you let me finish
my statements before you ask that question -- is this is the right thing to do
for the American people --
Q (Inaudible.)
THE
PRESIDENT: I didn’t ask for an
argument. I’m answering your question.
Q I'd like to --
THE
PRESIDENT: It is the right thing to do
--
Q (Inaudible.)
THE
PRESIDENT: -- for the American
people. And here’s why --
Q -- unemployment --
THE
PRESIDENT: Here’s the reason: because these young people are going to make
extraordinary contributions, and are already making contributions to our
society. I’ve got a young person who is serving in our military, protecting us
and our freedom. The notion that in some
ways we would treat them as expendable makes no sense. If there is a young person here who has grown
up here and wants to contribute to this society, wants to maybe start a
business that will create jobs for other folks who are looking for work, that’s
the right thing to do. Giving certainty
to our farmers and our ranchers; making sure that in addition to border
security, we’re creating a comprehensive framework for legal immigration --
these are all the right things to do.
We
have always drawn strength from being a nation of immigrants, as well as a
nation of laws, and that’s going to continue.
And my hope is that Congress recognizes that and gets behind this
effort. All right. Thank you very much.
Q What about American workers who are
unemployed while you import foreigners?
END
Possible New
Presidential Deportation Policy
It would be most
difficult--politically and on humanitarian grounds-- to deport the hundreds of
thousands (if not close to two million) younger people who have been authorized
to stay (and acquire work permits and driver’s licenses) in this country as a
result of the President’s non-enforcement/reprieve policy. (Formally titled
DACA—Deferred Action for Childhood Arrivals.) The President’s policy--though
dubbed temporary--is likely permanent. The growing Hispanic political potency,
and the non-Hispanic support for illegal immigrant leniency, are simply too
strong to allow DACA’s demise. Another two-year DACA-reprieve has been
authorized. Constitutionally, there is a problem. Accepted constitutional
doctrine leaves basic and permanent domestic policies affecting large numbers
of people to law-making by statute, and not to the executive branch operating
through executive orders. This is particularly true of the immigration policy
as Article I, Section 8 of the Constitution commands that Congress (and not the
president) has the power to establish a “uniform rule of naturalization.” The
most modern U.S. Supreme Court opinion [INS
v. Chadha, 462 U.S. 919 (1983)] on separation of powers doctrine is that
the congressional Article I, Section 8 law-making power, including immigration,
is plenary, and that executive regulatory authority is restricted to
subordinate rule-making delegated by Congress.[15] Nonetheless, the Obama
Administration is reportedly contemplating the use of nonenforcement which
would prevent the deportation of some half of the many millionsof illegals in
this country.[16]
Such presidential action--in so many respects meritorious-- would, as in the
case of DACA, likely be permanent and not temporary. It would surely be
challenged as unconstitutional, and as a severe violation of the president’s
constitutional duty to faithfully execute the laws. INS v. Chadha could be cited as grounds for insisting that the
president’s deportation/ reprieve power is restricted to what Congress allows,
and Congress surely has not authorized the freeing of millions of illegals from
deportation. But the only certainty about separation of powers doctrine is that
it is uncertain. Radically different doctrinal views regarding immigration
power have been expressed by the Supreme Court over the years—some even grounded
in the view that the president has inherent power over immigration.[17] Indeed, congressional immigration statutes
have been marked by great detail as who may come and who may stay. Nonetheless,
the president has exercised great authority over these matters irrespective of
whether his enforcement discretion has been delegated by Congress or not.[18]
Apart from constitutional questions,
authorizing millions of unauthorized immigrants to stay and work in this
country raises severe questions about its policy appropriateness. Consider
these excerpts from an August 5, 2014 letter to President Obama from United
States Civil Rights Commissioner Peter Kirsanow:[19]
It has been widely
reported in the press that you are preparing to issue an executive order that
purports to grant legal status and work authorization to millions of illegal
immigrants. I write to remind you of the disastrous effect of illegal
immigration on the employment of all Americans, but particularly black Americans.
Any grant of legal status will serve as a magnet to prospective illegal immigrants
and further depress employment opportunities and wages for African-Americans. …
In 2008, the U.S. Commission on Civil
Rights held a briefing regarding the impact of illegal immigration on the wages
and employment opportunities of African-Americans. The testimony at the briefing indicated that illegal
immigration disproportionately impacts the wages and employment opportunities
of African-American men. …
The briefing witnesses, well-regarded
Scholars from leading universities and independent groups, were ideologically
diverse. All the witnesses acknowledged that illegal immigration has a negative
impact on black employment, both in terms of employment opportunities and
wages. The witnesses differed on the extent of that impact, but every witness
agreed that illegal immigration has a discernible negative effect on black
employment. For example, Professor Gordon Hanson’s research showed that “Immigration
. . . accounts for about 40 percent of the 18 percentage point decline
[from1960-2000] in black employment rates.” Professor
Vernon Briggs writes that illegal immigrants and blacks (who are
disproportionately likely to be low-skilled) often find themselves in
competition for the same jobs, and the huge number of illegal immigrants ensures
that there is a continual surplus of low-skilled labor, thus preventing wages
from rising. Professor Gerald Jaynes’s
research found that illegal immigrants had displaced U.S. citizens in industries that
had traditionally employed large numbers of African-Americans, such as
meatpacking.
Illegal immigration has a disparate
impact on African-American men because these men are disproportionately
represented in the low-skilled labor force. The Census Bureau released a new
report on educational attainment after the Commission issued its report. This
report, released in February 2012, found that 50.9 percent of native-born blacks
had not continued their education beyond high school. The same report found that 75.5 percent of foreign-born
Hispanics had not been educated beyond high school, although it does not
disaggregate foreign-born Hispanics who are legal immigrants from those who are
illegal immigrants. However, Professor Briggs estimated
that illegal immigrants or former illegal immigrants who received amnesty
constitute a third to over a half of the total foreign-born population. Foreign-born Hispanics who are in the United States
illegally are disproportionately male. African-Americans
who have not pursued education beyond high school are also disproportionately
male. These poor educational attainment
levels usually relegate both African-American men and illegal immigrant men to
the same low-skilled labor market, where they must compete against each other
for work.
Your proposed
executive order will also have a negative effect on young African-Americans at
the outset of their working lives. Young, low-skilled workers are facing enormous
difficulties in this economy. A recent study from the Brookings Institution found,
“Only about half of high school graduates not enrolled in post-secondary education
and less than 30 percent of high school dropouts worked in a given month in 2011.” Black teens had the highest labor underutilization rate (defined
as encompassing the unemployed, the unemployed who desire employment but are
not actively looking, and the underemployed) of any ethnic group – 60 percent. Furthermore, “Several variables were negatively associated
with teen employment rates in a given metropolitan area. … [including] the
presence of immigrants with less than a bachelor’s degree.” This will affect
young people for the rest of their lives, as those who work during their teenage
years have more successful careers than those who did not.
Granting legal status to millions of people who are in the United States
illegally will continue to depress the wages and employment opportunities of
African-American men and teenagers. It also will depress the wages and
employment opportunities of African-Americans going forward. Since 1986, we
have seen that granting legal status to illegal immigrants, or even mere rumors
that legal status will be granted, increases illegal immigration. …
The irony is
that your administration’s policies operate at cross-purposes. In 2013, the
EEOC issued guidance regarding the use of criminal background checks as part of
a prisoner re-entry effort. The guidance was premised on the
fact that African-American males are more likely to have a criminal record, and
therefore, according to the EEOC, are more likely to be harmed by the use of
criminal background checks. Yet you are planning on issuing
an executive order that will harm the employment prospects of African-American
workers now and for years to come. In one part of the executive branch, the
EEOC issues misguided policies in an attempt to increase employment opportunities
for African-American men, and in another part of the executive branch, you prepare
to issue an executive order that will decrease employment opportunities and wages
for those very same African-American men.
Additionally, your proposed executive
order will have a disparate impact on the basis of national origin. As you
know, disparate impact theory holds that a facially neutral policy can nonetheless
constitute unlawful discrimination if it disproportionately affects a
particular group. The proposed executive order will do just that. It will necessarily
disproportionately benefit people who are Mexican and Central American, which
means that it will disproportionately disadvantage other ethnic groups. In
other contexts, this would be considered a violation of Title VII. …
Copyright 2014 ©
by William M. Leiter. All rights reserved.
[1] Cited by Ginger Thompson & Sarah
Cohen, “More Deportations Follow Minor Crimes, Data Show,” The New York Times,
Natl. Ed., April 7, 2014, p. A12.
[2] Philip Hamburger, Is Administrative Law Unlawful ?
(University of Chicago Press, 2014), 1.
[3] Article II of the U.S. Constitution,
section 3.
[4] U.S.
v. Armstrong, 517 U. S. 456, 464,
463-471 (1996).
[5]
Adam B. Cox & Cristina M. Rodriguez, “The President and
Immigration,” 119 Yale L. J. 458 (Dec. 2009), 512-513.
[6] Id and Robert J. Delahunty &
John X. Yoo, The Obama Administration’s
Nonenforcement of Immigration Laws, The DREAM Act, and the Take Care Clause, 91
Texas Law Review 781(2013), 788.
[7] Laura Preston, “While Seeking
Support, Obama Faces a Frustrated Hispanic Electorate,” The New York Times,
Natl. Ed., June 11, 2012, p. A10.
[8] Editorial: “Fixing Immigration in
the Field,” The New York Times, Natl. Ed., August 17, 2014, p. A10.
[9] Laura Meckler & Miriam Jordan,
“Easing of Deportations Expected to Be Modest,” The Wall Street Journal, April
24, 2014, p. A4.
[10] Ginger Thompson & Sarah Cohen,
“More Deportations Follow Minor Crimes, Data Show,” The New York Times, Natl.
Ed., April 7, 2014, p. A1, A12.
[11] Id, p. A1.
[12] Among other things, to qualify
applicants must have come to the U.S. when they were 16 or less; have lived in the U.S. continuously for the
last 5 years; be under 31; and completed or be in the process of completing
high school. Miriam Jordan, Young Immigrants’ Applications Fall, The
Wall Street Journal, March 15, 2013, p. A2.
[13] Robert J. Delahunty & John X.
Yoo, The Obama Administration’s
Nonenforcement of Immigration Laws, The DREAM Act, and the Take Care Clause, 91
Texas Law Review 781(2013), 783.
[14]
U.S. Whitehouse Website, Remarks
by the President on Immigration, June 12, 2012. See:http://www.whitehouse.gov/the-press-office/2012/06/15/remarks-president-immigration
[15] Adam B. Cox & Cristina M.
Rodriguez, “The President and Immigration,” 119 Yale L. J. 458 (Dec. 2009),
476-483.
[16]
Ronald Brownstein, “Immigration Showdown,” The Los Angeles Times, July
18, 2014, p. A17.
[17] Cox & Rodriguez, 119 Yale L. J.
460-461. (Cited in note 15.)
[18] Id at 510-511.
[19]
Footnotes Omitted. Letter accessible at http://www.newamericancivilrightsproject.org/wp-content/uploads/2014/08/Letter-to-President-Obama-Regarding-Proposed-Illegal-Immigration-Executive-Order.pdf
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