Response to lawsuit by 17 states challenging Obama's Nov. 20 initiative


In my adopted state of South Carolina, our Attorney General, Mr. Alan Wilson, has attacked the recent action taken by President Obama, to “alter United States immigration law by unilateral executive order,” as he put it. The president’s act, in introducing the “DAPA” program (Deferred Action for Parental Accountability) and in expanding the current “DACA” (Deferred Action for Childhood Arrivals”) program, has prompted a lawsuit filed by 17 states, led by Texas, and including South Carolina. While I have great respect for our state’s attorney general, I wish to contribute my views, as a lawyer with experience in the field of immigration law. Specifically, I hope to address the concerns of the plaintiff states who question the president’s authority on this issue.


On November 20th, President Barack Obama issued an executive order, to expand the protection of what is termed ”Deferred Action” to a pool of several million potential undocumented aliens. This act, and the program, is in line with an established immigration enforcement policy known, generically, as “prosecutorial discretion.” Mr. Wilson’s view, however, is that Mr. Obama is attempting to “alter or rewrite” the nation’s immigration laws and is therefore exceeding his constitutional authority.

How, exactly, has the president upset this hornet’s nest?

  • First, his critics say he has unilaterally attempted to legislate immigration laws – a function reserved to the Congress – with an aim to “give amnesty to four million illegal immigrants.”

  • Second, Mr. Wilson and others claim that he has ignored the administrative rulemaking process required for making changes to existing regulations of Federal agencies – in this case by requiring those agencies to “award legal benefits, including federal work permits and Social Security, to individuals who are openly violating our laws.”

In short, Mr. Wilson claims the president is acting without authority, in two respects. First, that Mr. Obama is usurping Congress’s power to legislate; and second, that he is sidestepping the executive branch’s formal administrative rulemaking process.

The President’s Constitutional Authority – to Enforce the Immigration Laws

In response, it seems that the proponents of the lawsuit are laboring under a misapprehension. In truth, the Congress has already given the president and the executive branch the power to enforce the nation’s immigration laws, and this authority is tempered by a policy of “prosecutorial discretion.”

To put the results of this enforcement authority in real numbers, the president has already deported nearly as many individuals as may benefit from his recent executive order – with about 3.6 million deportations to date. This is a level which exceeds figures from any previous administration. For our purposes, it is also significant because it has been accomplished through the lawful exercise of the president’s powers to enforce the immigration laws. This authority is solidly grounded in federal statute, and it is the basis for the president’s executive order.

In short, the president is acting well within the authority given to him by Congress.

  • Under the Separation of Powers doctrine in our nation’s Constitution, Congress has been given the authority to pass legislation -- notably the McCarran-Walter Act, also known as the Immigration and Nationality Act of 1952 (the INA).

  • The INA has been amended from time to time over the past 60 years, but only rarely has it been used for true “amnesty” purposes – the 1986 “Legalization” amendments signed by President Reagan being the notable exception.

  • Within the INA, Congress has authorized the executive branch – the attorney general, and a federal agency, now known as the Department of Homeland Security (DHS) – to administer and, relevant for DAPA purposes – to enforce the country’s immigration laws.

  • DHS, in turn, periodically issues regulations, or rules, to codify or formalize its guidelines, with memorandums and manuals for further instruction for its officers and agents.

  • DHS was created in March 2003 when the Immigration and Naturalization Service (INS) was dismantled, in response to the perceived need for heightened security measures following the September 2001 World Trade Center tragedy.

“Prosecutorial Discretion” and its Benevolent Feature, “Deferred Action”

As mentioned above, the Obama administration has chalked up an impressive enforcement record over the past six years, with record numbers of annual deportations. As the number of individuals in the deportation “pipeline” has swelled, the Homeland Security agency has set common-sense guidelines for prioritizing the cases it wishes to prosecute, in the exercise of its discretion. DHS may make temporary, case-by-case, determinations, to low-prioritize others, and in some circumstances, the agency may offer temporary “employment authorization.” This process – known as “prosecutorial discretion” – stems from the executive branch’s enforcement authority in the INA, which Congress has created and altered over time. In the most favorable of these cases – that is, when employment authorization is permitted -- we are speaking of a special variety of prosecutorial discretion, called “Deferred Action.”

Deferred Action is an administrative measure of relief that derives from the enforcement authority of DHS – that is, to prosecute individuals present in violation of the law. The DHS agency charged with enforcement is known as Immigration and Customs Enforcement (ICE). With the reorganization of the immigration authority, guidance on the matters of prosecutorial discretion and Deferred Action has continued by memorandums; for example, former INS Commissioner Doris Meissner in 2000 and, most recently, by DHS Secretary Jeh Johnson, on November 20th of this year.

In cases where ICE deems it appropriate to offer Deferred Action to an individual (or, as here, a group of potentially several million), it will offer certain temporary benefits, such as employment authorization documents (“EAD cards”). Contrary to Mr. Wilson’s claim that DAPA-based Deferred Action will illegally bypass the administrative rulemaking process and the Administrative Procedure Act (APA), eligibility for employment authorization by recipients of Deferred Action, generally, has long been settled, and it was done through the very process required by the APA.

Two points, concerning EAD cards:

  • There is typically a user’s fee of several hundred dollars for EAD cards.

  • Approval for “employment authorization” also means the individual may apply for a Social Security number, and begin paying into that system.

Positive Economic Impact of Deferred Action

Why are the 17 states raising a challenge at this point in time? The Obama administration’s Deferred Action for Childhood Arrivals (DACA) program has enjoyed over two years of success. Since August of 2012, approximately 600,000 foreign-born young adults (roughly aged 16 to 31) have successfully registered for DACA. These individuals are able to attend college (I know of one individual in medical school), to work for a fair wage and contribute to the Social Security system, and to apply for driver’s licenses. In short, thanks to DACA, they have seized the opportunity to contribute to society and support their families and communities.

Nonetheless, Mr. Wilson warns that “the economic impact of the president’s actions could have a catastrophic impact on our taxpayers, who will be forced to pick up the tab for the cost of law enforcement, health care and education for millions of people who are in our country illegally.” I must respectfully disagree. Recall that a key feature of Deferred Action is access to legal employment. These new members of the job force will thereby offer a benefit, not a burden, to society by paying taxes and paying for goods and services, supporting their families, and otherwise acting as responsible individuals.

The Attorney General claims that the Obama proposal, unless defeated in the courts, will cause education costs to go up. In truth, those costs will not rise. Why? For two reasons:

  • All children present in the United States, regardless of immigration status, are already entitled to a free public education – right up to graduation from high school. This is a ruling of the Supreme Court, Plyler v. Doe (1982), dating from the days of the Reagan administration. It may be interesting to note that the losing party in that case was the State of Texas, the lead plaintiff in the present action.

  • Beneficiaries of DACA and DAPA Deferred Action will be eligible to enroll in many states’ institutions of higher education and pay fair tuition rates. Upon graduation, they will be qualified to work in good-paying skilled-worker and professional positions, and contribute their fair share of taxes. This is a win-win situation for everyone, isn’t it?

Is Deferred Action Consistent with the “Rule of Law”?

Are there limits to Deferred Action? Is it really “amnesty,” as its critics claim? Secretary Johnson’s memorandum makes it clear that it is no “path to citizenship.” Instead, “it is granted on a case-by-case basis, and it may be terminated at any time at the agency's discretion.” Again, quoting the memorandum, it “does not confer any form of legal status in this country, much less citizenship; it simply means that, for a specified period of time, an individual is permitted to be lawfully present in the United States.” In spite of all this, Attorney General Wilson has chosen the word “amnesty” – which actually means a complete pardon or forgiveness – and this is, unfortunately, misleading.

Mr. Wilson takes pains to stress that the lawsuit “is unrelated to the issue of immigration” and that “[i]t is simply intended to uphold and defend the rule of law.” His column fails to explain satisfactorily how “prosecutorial discretion” is contrary to the “rule of law.”

This begs the question, what is the “rule of law”? To have any real meaning in our society, the “rule of law” must go beyond blind adherence to the “black letter” of the law. It must be, instead, the respectful and healthy commitment to the spirit of the law. Thus, it is our obligation as a society to urge change when this is necessary for the greater good. It may bear recalling that our Constitution has been amended nearly thirty times in its 225-year history – and yet it is still our nation’s gold standard. And that, in 1965, the immigration laws were amended by Congress, to allow fairer standards for immigration from Asia. This permitted many new immigrants to come from India to our shores, such as the families of two respected state governors – Bobby Jindal of Louisiana, and Nikki Haley, of South Carolina. Ironically, Ms. Haley supports Attorney General Wilson’s filing of the lawsuit.

The Road Ahead

Given our current legal framework, Deferred Action is a powerful, and entirely legal, resource at the president’s disposal. But what of change? It is time, I think, for each of us to search our conscience and, if so inspired, to tell our representatives in Washington that we want to see this great country break free of the current stalemate and paralysis caused by senseless partisan division. Don’t we deserve better? Do we want better, for our children, and for future generations?

The Congress must resume a dialog on immigration reform, if we are to be competitive in the global markets, and respected as a player on the world’s stage. We would do well to remember Lady Liberty, lifting her lighted lamp in the famous poem, welcoming those who yearn to breathe free – and let our better natures guide us to live by that standard.

Thank you.

Yours truly,

Allen C. Ladd, Attorney

Reprinted with permission

About The Author

Allen C. Ladd

Allen C. Ladd Allen Ladd practices immigration law in Greenville, South Carolina. He is a graduate of the University of Virginia and Albany Law School of Union University. He was admitted to practice in NY (inactive) and TX, GA, SC (all active); 4th and 11th Circuits. Allen has been an AILA member since 1990 and serves in liaison capacities in several chapters.

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