When the DREAM Act failed to overcome a Republican filibuster in 2010, I went to President Barack Obama along with my Congressional Hispanic Caucus colleagues to discuss what we could do to meet the great need for immigration reform, given that the Republicans would now control the House and their primary goal was to prevent the president from solving any problems facing the American people. We appealed to the president to use the power Congress had already given him under existing law to prioritize the deportations of serious criminals and smugglers ahead of students, children, families, and others with deep roots in the United States and clean criminal records.
Lawyers at the Department of Homeland Security in 2009 outlined what the president could do for immigrants under current law in the Mayorkas Memo if, as expected, Republicans blocked new legislation. A Republican senator leaked the memo to the media as evidence of a "secret amnesty plan." In fact, it was a well-reasoned internal legal document from lawyers and experts in the immigration service to their boss.
Then more lawyers started weighing in, including two former general counsels of the old Immigration and Naturalization Service and, most recently, almost 100 lawyers from the nation's top law schools. They made it clear that previous Republican and Democratic presidents had used the power of prosecutorial discretion to spare certain immigrants from deportation when their removal was not in the national interest. More than 20 U.S. senators agreed and so did the Congressional Hispanic Caucus; the president should suspend the deportations of DREAM-eligible youth using his power under current law.
The president recently did just that: He protected the DREAMers from deportation. This is not only the right thing to do morally; it is the right thing to do from a law enforcement perspective. With deportations running at capacity, about 400,000 people per year, and court dockets backlogged, the president must prioritize whom to deport. Obviously, we cannot deport all 11 million to 12 million undocumented immigrants, so putting criminals and smugglers first—ahead of students and children—simply makes sense.
If anyone still had any doubts about the legal ground on which the president stands with his recent announcement, he or she need only look at Arizona v. United States, the Supreme Court case handed down last week declaring most of Arizona's SB 1070 "Show Me Your Papers" law unconstitutional.
The court ruled that Arizona could not mandate federal immigration priorities because, "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. ... Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime."
I have never pretended to be a legal scholar, but when scores of lawyers are lining up to agree with the Supreme Court that the president has the power to make choices when it comes to whom to deport and whom to let stay, then I tend to agree with them. While there are those who want to launch partisan attacks at this president, he is on rock-solid legal ground.
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