And by “El” we mean President Obama.
For those who did not completely tune out the news cycle over this past Labor Day weekend, you know (or by now have heard) that President Obama will likely not take up the issue of an expanded deferred action plan or other expanded prosecutorial discretion based immigration policy change until after the elections. In fact this is hardly surprising. Given the fact that the Democrats have been on the defensive in the US Senate nearly all year and that any action taken by the administration will be campaigned against as “amnesty” it is no surprise that the White House, as of last week, is still debating with the Homeland Security and Justice Departments about what to do. So the political choice is made to take no action until after the elections.
Of course, following up on our previous post of DACA Update and Things to Come? of August 28, 2014, the law is overwhelmingly on the President’s side. He does have the legal authority to take further action based on the current Deferred Action for Early Childhood Arrivals (DACA) model. This authority is firmly rooted in the President’s constitutional prerogative of prosecutorial discretion as protected by the separation of powers doctrine.
But you don’t have to take our word for it. Following our post of August 28, 2014, over 130 leading law professors across the United States agreed with us and said so in a letter to the President signed by them and dated September 3, 2014. You can see the entire letter and all 137 signatories by clicking here:
Echoing the words of our August 28, 2014 post, the letter states, in part:
The application of prosecutorial discretion to individuals or groups is grounded in the Constitution, and has been part of the immigration system for many years. Furthermore, court decisions, the immigration statute, regulations and policy guidance have recognized prosecutorial discretion dating back to at least the 1970s. Notably, in 2012, the U.S. Supreme Court reiterated: “A principal feature of the removal system is the broad discretion exercised by immigration officials…Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all…”7 Federal courts have also recognized prosecutorial discretion and with respect to deferred action in particular, discussed its reviewability.8
We’re happy to have the company!