The following post has been revised and updated as of 10:15 am on August 18 to include a discussion of the legal basis for expanding work visa and green card availability, not only granting relief from deportation as in my original comment.

Now that it is becoming more likely that President Obama will use executive power to expand the number of people eligible for relief from deportation, the scope of and basis for this power is coming under more scrutiny from legal analysts and other commentators on both sides of the immigration divide.

Nor would expanded executive action necessarily be limited to deportation. POLITICO reports on August 18 that the White House is also talking with business leaders about using his executive power to make green cards and work visas available to more workers in industries such as high-tech, agriculture and construction. See Exclusive: White House meets with big biz on immigration.

Up to now, most of the discussion concerning executive action has been focused on the relatively narrow principle of prosecutorial discretion, a doctrine which, as its name implies, has its origins in criminal law and, at least for immigration purposes, is based on the practical reality that the government does not have the resources to deport every single last one of the estimated 11 million aspiring immigrants who are in the US without legal status (to the great chagrin of the Tea Party and other immigration opponents).

However, many people are asking whether the doctrine of prosecutorial discretion, which almost by definition is meant to be exercised on a case-by-case basis, is strong enough to support exempting (or "deferring") entire classes of people from deportation, as the president has done in the DACA program and is reportedly considering doing for an even wider group or groups of unauthorized immigrants. Moreover, the doctrine of prosecutorial discretion. also by definition, is useful only with regard to decisions about whether to take action against immigration law violators. It does not provide authority for expanding the reach of legal visas or green cards.

As the media have certainly not failed to notice, there are many voices, and not only coming from the Tea Party, being raised to question whether the courts would go along with any extensions of DACA through executive action. The same concerns are also being raised with regard to using executive action to expand legal immigration, such as recapturing unused green cards or making adjustments in existing work authorization programs. (See the above POLITICO article.)

But what if there is already an older, broader and more universally accepted legal doctrine in existence, one which has been recognized by the Supreme Court repeatedly for more than a century, which would justify the president in extending, not only protection against deportation, but work authorization and green cards though the legal immigration system to expanded groups of people without any likelihood of court interference?

There is of course, such a doctrine. It is called Plenary Power over immigration. In essence, this doctrine holds that immigration policy can only be determined by the "political branches" of the federal government, namely Congress and the executive, not the judiciary.

As a practical matter, this doctrine gives the executive branch almost complete control over immigration enforcement, not only because Congress has delegated so much responsibility for immigration to the executive, but because of something known as the "Chevron" doctrine, to be discussed later on, which requires the courts to defer to agency "expertise".

Ironically, the one of the most powerful and well-documented arguments in favor of using Plenary Power as support for broad executive branch discretion over immigration enforcement comes from the notoriously anti-immigrant organization, Center for Immigration Studies ("CIS", not to be confused with USCIS) in a February 2009 report by Jon Feere entitled Plenary Power: Should Judges Control US Immigration Policy?

As this report makes clear, the purpose of upholding executive (and Congressional) power over immigration and keeping the courts out of this area was to make it easier for the government to deport more people, faster, and with less interference from judges. It is unlikely that the author of this report would have imagined that it could be used to support expanded presidential power to grant relief from deportation, or to make legal work visas and green cards available to more people.

But even though the Plenary Power doctrine, which originated in one of the most shameful periods, if not the most shameful, in all of American immigration history, that of the late 19th century Chinese exclusion laws, was originally intended to make it easier to stop immigrants from entering the US or to send them back to their country of origin, there is no reason why the same doctrine cannot be used to allow millions of people who are currently here without status to stay and work legally in the United States, and to make legal visas and permanent residence more inclusive.

I will discuss the Plenary Power doctrine and the CIS analysis in more detail in an upcoming post. In the meantime one could ask whether CIS (and its head, Mark Krikorian, who also, until recently, served as a volunteer English teacher for immigrants preparing for the citizenship exam before being summarily removed from those duties) may one day be hailed by future generations of immigrants as pioneers in developing a legal basis for allowing millions of otherwise deportable people to become Americans, or at least to remain in the US, and making legal work visas and green cards available to even more people. There must be some room left at the base of the Statue of Liberty for their names to be inscribed.
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Roger Algase is a New York lawyer and graduate of Harvard College and Harvard Law School. He has been practicing employment and family immigration law for more than 30 years; now concentrating in H-1B and O-1 work permits, and green cards through labor certification, extraordinary ability and opposite or same sex marriage, among other immigration and citizenship cases. His email address is algaselex@gmail.com