The argument sometimes comes up that INS’s time would be much better spent trying to crack down on employers who employ illegal immigrants instead of trying to round them up and forcibly deport the workers themselves; the idea being that when you deport them they just come back, but if you can eliminate the jobs that are open to illegals they’ll eventually voluntarily “self-deport” and not come back. That’s one form a deportation-free immigration policy could take.
True, but Latino activists have become so aggressive that even “self-deportation” is now considered unacceptable. Look how much trouble Romney got for suggesting what was essentially a non-forcible deportation policy.
To what extent does the law require the executive branch to deport any undocumented immigrants they happen to identify?
The law doesn’t require it anymore than the law requires the federal government to identify and pick up tax cheats, murderers, drug dealers, dirty politicians, dirty CEOs, or terrorists.
It’s just against the law to enter this country illegally, or stay past your visa, and the executive branch is supposed to faithfully execute the laws of this country. Since border enforcement has dedicated bureaucracy, much like tax enforcement, it’s all about resources. Choosing to deport fewer people just because you don’t agree with our laws is not faithful execution, just as not going after tax cheats because you disagree with our tax laws wouldn’t be.
I dunno. The executive can deport someone who has no authority to remain in the country, just like it can compulsorily purchase your land for the purpose of constructing a highway or a railway. But there is no obligation to do either of these things, and no law is infringed if they are not done. Would you say that the executive is not faithfully executing the laws of the country because it hasn’t yet expropriated your home?
Whether to compulsorily acquire your home, whether to deport an illegal alien, whether to prosecute a suspected criminal, is in every case a policy decision. It might be good policy or it might be bad policy. But it’s policy, not law.
Might this depend on the exact wording of the law? If the law specifies that such persons “must and shall” be deported, that’s different from saying they “are liable to deportation.” I’d have to see the actual law in question to be sure what level of discretion is allowed to the Administration.
(My personal moral belief is 100% in favor of humanitarian discretion, especially in the case of people who have lived nearly their entire lives in the U.S. There may be large numbers of “illegal immigrants” who don’t even know that they aren’t citizens!)
I haven’t seen the text of the law either. But, given that the law doesn’t say that criminals must be prosecuted, it would be surprising if it said that people not accused of any crime must be proceeded against. If Congress wanted to mandate the executive to move vigorously against those in the country without authorisation, wouldn’t a law making it an offence to be in the country without authorisation be an obvious first step? And if Congress hasn’t criminalised this behaviour, it seems unlikely that they would be mandating executive action to supress it even more vigorously than they mandate executive action to punish crimes.
Plus, if there were a law requiring the executive to deport unauthorised aliens, given the politically controversial nature of the topic, don’t you think that by now someone would have taken court proceedings to compel the executive to obey the law?
So, if anybody can be bothered to do the research, I’ll be interested in the outcome. But I’ll be genuinely surprised if it turns out that the law positively requires the executive to deport unauthorised aliens.
You seem to be suggesting that the President can just choose not to collect taxes or enforce the Clean Air Act. OR even arrest abortion clinic bombers.
I don’t think there are any laws that require the executive to arrest or punish anyone. The President can therefore choose to make zero federal arrests and impose zero fines. I would also cite a certain law professor on the issue:
Prosecuting authorities can certainly choose not to prosecute, and they do that all the time, for various reasons. Plea bargains, grants of immunity in exchange for testimony, diversion of offenders into alternative justice systems . . . . In fact every police force that isn’t running a zero tolerance policy on every offence, however petty, all the time is making decisions not to prosecute.
And, yes, the government can decide not to enforce a particular tax liability. They have a powerful incentive not to make that decision very often, obviously, but they can do it and no doubt occasionally do.
But there’s a big difference between prosecutorial discretion and refusal to enforce the will of Congress because you just don’t want to. We don’t get every tax cheat, but the tax laws are faithfully enforced and administrations don’t try to pressure the IRS not to enforce tax laws. Yet administrations do pressure ICE to go easy on immigrants. Obama in particular has mostly lost this battle because ICE is authorized by law to deport whoever they can get their hands on
Yes, authorized, not obliged. Congress hasn’t criminalised being an authorised alien, so in not treating it like a crime the executive is not going against the will of Congress. Congress hasn’t (that I know of) mandated the deportation of all unauthorised aliens, so in not deporting all of them the executive is not going against the will of Congress. Congress has given the executive branch the power to deport unauthorised aliens, but left it up to the executive branch to decide, within the legislated parameters, when and on what terms to exercise that power. The executive, in making those decisions, is not going against the will of Congress; it is in fact discharging the function which Congress has conferred upon it.
Individual Congressmen may have view on whether they are discharging that function well or badly, and they are free to air those views. But it’s not the role of the executive to do what individual congressmen want, and if the executive makes judgments which congressmen don’t like, that’s not “going against the will of Congress”. It is, after all, the will of Congress that the executive should make those judgments. If you tell somebody else to make judgments, you have to live with the fact that he may sometimes make judgments which are not the judgments that you would have made, if make those judgments were your business rather than his.
It’s only not a crime to be here unauthorized because it’s easier to deport than to jail and deport. There’s also already a system in place that doesn’t require any Presidential interference. We have X number of border agents, X number of ICE agents, and X number of immigration courts, and they all work exactly as Congress authorized. If the President can order them to stop working because he doesn’t like our immigration policy, then that means he can also halt the EPA’s work, the IRS’s work, and the SEC’s work.
Since I’ve started this thread, I’ve also learned that the President(and he’s not the first one) has tried to reduce deportations by basically telling ICE to not enforce the law so rigorously. Those orders have been pretty much ignored, since they run contrary to ICE’s authority under duly enacted Acts of Congress. So Clinton would have to take some very difficult actions to keep that promise which would pretty much use up all of her time and political capital. Which is why her promise is complete BS in the absence of a Congress willing to enact such a plan into law. Which I don’t think even a Democratic Congress would have the balls to do.
Yes, I know. That’s pretty much the point. Congress wants to make the deportation of unauthorised aliens a matter for executive decision rather than judicial determination. But if you make something a matter for executive decision then you put the executive in control of it. You can’t have it both ways.
If Congress wants to pass a law requiring that unauthorised aliens be deported whenever they are detected, Congress can pass that law. If they don’t pass that law, whinging about the executive ignoring the will of Congress is just so much hypocritical cant. The time for that complaint is when Congress passes that law, and the President vetos it. Not before.
But as I pointed out, there are no laws requiring the President to prosecute anyone. It’s simply implied that all laws will be faithfully carried out.
If the President actually had the uncontested power to just shield whole classes of people from laws he didn’t agree with we wouldn’t be having a court case over his executive action on immigration, which is actually far less radical than what Clinton is proposing. Which is basically to not deport anyone unless they are a felon. Which would be equivalent to not prosecuting a person unless they commit two crimes.
Yes. But a law conferring prosecuting powers is faithfully carried out by deciding whether and when to exercise those powers.
I’m open to correction, but I think the court case is not about whether the executive has the power to decide when to prosecute and when not to. It’s accepted by everyone that it does have that power. The questions are rather (a) whether the President is the proper officer of the executive to exercise that power, and (b) whether the particular exercise of the power complained about is valid.
No, because - as pointed out repeatedly in this thread - being an unauthorised alien is not, in itself, a crime. It is the will of Congress that it should not be a crime. Are you flouting the will of Congress? 
In individual cases. You cannot decide not to prosecute a crime at all. The President cannot decide that he will no longer go after racketeering. He can decide that certain racketeering cases aren’t worth pursuing given limited resources.
Which gets us to the other problem with Clinton’s promise which I’ve touched on before: enforcement of law is handled by the bureaucracy, with leadership from the President. However, micromanagement is nearly impossible. In order for Clinton to keep her promise to only deport felons, she would have to basically wage war with ICE and its union. She’d have to give direct orders not to deport non-felons, and then find a way to fire people who disobeyed. Alternatively, she could attempt to craft an executive order shielding non-felons from deportation, but that would be far more radical than what Obama is already trying to do, and far more likely to be struck down by the courts.
Basically, keeping her promise would use up all of her political capital. If Obama wasn’t willing to keep his promise to submit an immigration reform bill in his first year in office, then the odds of Clinton keeping this promise are pretty much nil.
I think the distinction is: can a police officer choose not to pull over a speeder? Of course. Can a police officer issue you a license to speed? No. The President can definitely choose to prioritize the deportation of dangerous felons. It does not seem that he has the power to order ICE to use only a fraction of its resources, which might also bring up issues like impoundment of spending. If the President can order ICE to not spend its money enforcing the law, then the President can order any agency to not spend money appropriated. Which is a battle President Nixon already had with Congress and lost.
It is not a crime for practicality reasons. Civil offenses are easier to adjudicate than crimes. That being said, most illegal immigrants are felons, at least if they are working illegally.
The current court case that was granted cert may shed light on the limits of the “faithfully execute” clause, but until then I think it’s a toss up. If SCOTUS is silent, then I would say the president can do exactly as you state with no legal consequence - halt the EPA, IRS, and SEC, for sure. Only enforce tax evasion for amounts over x percent, totally. Essentially the president can selectively enforce any federal law with impunity.
But how does he bring the bureaucracy to heel? That’s the big question. The President doesn’t make prosecution decisions on his own. And it doesn’t seem that there are any consequences to employees who buck the President, especially if Congress has their back and they are implementing Congress’ will.