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Law Professors Support President Obama’s Executive Action on Immigration

November 23, 2014


Last week President Obama announced his plans to take executive action to address, as he has put it, the nation’s “broken” immigration system. Although House Speaker John Boehner quickly accused the President of “undermin[ing] the rule of law,” President Obama’s action fits comfortably within a long line of precedent and is completely consistent with the text and history of our Constitution. As CAC’s Chief Counsel Elizabeth Wydra said on Fox News in advance of the President’s announcement, the President has “broad discretion” in the immigration context. And last week, a group of preeminent law professors agreed, writing a letter to support the President’s actions. As they said at the beginning of their letter, “While we differ among ourselves on many issues relating to Presidential power and immigration policy, we are all of the view that these actions are lawful.”

As the law professors explain in their letter, “[p]rosecutorial discretion – the power of the executive to determine when to enforce the law – is one of the most well-established traditions in American law,” and it is “central to the enforcement of immigration law.” Indeed, the exercise of such discretion is “unavoidable” because there are “approximately 11 million undocumented noncitizens in the United States,” and Congress has only appropriated funds to permit removal of approximately 400,000 people each year. As they discuss, “[t]he effect of the November 20 executive actions is to secure greater transparency” to the exercise of this discretion, which (contrary to Boehner’s assertion) actually “promotes the values underlying the rule of law.”

These professors acknowledge, of course, that there are “limits on the prosecutorial discretion that may be exercised by the executive branch,” but they state unequivocally that “these limits . . . are not breached here.” As they note, “[b]oth the setting of removal priorities and the use of deferred action are well-established ways in which the executive has exercised discretion in using its removal authority,” and “have been used many times by the executive branch under Presidents of both parties.” They also note that the specific enforcement priorities set by the President’s action are consistent with “long-standing congressional policies.”

So when Speaker Boehner and President Obama’s other critics accuse him of undermining the rule of law and engaging in unlawful executive action, it’s useful to remember what the actual experts on the rule of law and executive action have to say: the President’s actions “are within the power of the Executive Branch and . . . represent a lawful exercise of the President’s authority.”

The full letter appears below: