Executive action to grant relief from deportation is finally on the way, according to President Obama's June 30 speech in the Rose Garden. See POLITICO, Obama: GOP failed to pass a 'darn' immigration bill (June 30, updated July 1).

As Seung Min Kim and Jennifer Epstein report in the above article, before his speech, Obama met with immigration advocates and told them that he will examine all options within his Constitutional powers to grant relief from deportation without action by Congress.

House speaker John Boehner is now threatening to sue the president over his alleged abuse of executive power in a number of so far unspecified areas. No one seriously doubts that immigration enforcement is among them. There are also veiled, or perhaps not so veiled threats that a move in the House to impeach the president may not be far behind.

However, political stunts aside, the legal issue of how much executive power the president has to limit deportations is now front and center in the immigration reform debate. This post will look at this question.

One of the most comprehensive and in-depth discussions of this issue appears in a December 27, 2013 study by the Congressional Research Service entitled Presidential Discretion in Immigration Enforcement: Legal Issues. The study is written by two Legislative Attorneys, Kate M. Manuel and Todd Garvey.

In support of their contention that the executive branch has broad powers over immigration enforcement, the authors cite two Supreme Court cases.

The first is Reno v. American-Arab Anti Discrimination Committee, 525 US 471, 490 (1999). In that case, the Supreme Court majority stated that the concerns that prompt deference to the executive branch's determinations about whether to prosecute criminal offenses are "greatly magnified in the deportation context", as deportation proceedings are civil rather than criminal.

And in Arizona v. US 132 S. Ct at 2498 (2012) the Court majority held that a "principal feature of the removal system is the broad discretion entrusted to immigration officials". The Arizona decision also specifically listed "immediate human concerns" and "equities of...individual cases" as among the factors which could be involved in prosecutorial discretion.

Over and beyond these broad judicial statement, the authors of the above study cite BIA or federal court decisions upholding prosecutorial discretion with regard to numerous immigration enforcement issues.

These include the following:

- whether to parole an alien into the United States;

- whether to commence removal proceedings and what charges to lodge against the respondent;

- whether to pursue formal removal proceedings;

- whether to cancel a Notice to Appear or other charging document before jurisdiction vests with an immigration judge;

- whether to grant deferred action or extended voluntary departure;

- whether to appeal an immigration judge's decision or order, and whether to file a motion to reopen;

- whether to invoke an automatic stay during the pendency of an appeal; and

- whether to impose a fine for particular offenses.

The above indicates that if Speaker Boehner goes ahead with any plans he may have to sue the president for exceeding his authority with respect to the exercise of discretion over immigration enforcement, the speaker will have a heavy burden of showing that the law is on his side.

However, are there also limits to executive power over immigration enforcement? The above Congressional Research Study also deals with this question, as will be discussed in an upcoming post.
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Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. He has been practicing business and family immigration law for more than 30 years. His email address is algaselex@gmail.com