The Trump administration focuses its immigration enforcement efforts on deportable criminal aliens who pose a threat to public safety or national security. However, it does not prohibit enforcement against noncriminal aliens who fall within one of several classes of deportable aliens. Border czar Tom Homan has warnednoncriminal aliens that “if you're in the country illegally, you got a problem ... anyone in the country unlawfully is ‘on the table.’"

Is this really necessary? Can’t enforcement be limited to dangerous criminal aliens?

In fact, that is what the previous administration did when its Homeland Security secretary, Alejandro N. Mayorkas, issued a memorandum setting forth the department’s immigration enforcement guidelines.

According to Mayorkas, the fact that an alien is deportable “should not alone be the basis of an enforcement action against them.” Discretion must be used to focus enforcement efforts against aliens “who pose a threat to national security, public safety, and border security and thus threaten America's well-being.” Moreover, consideration should be given to mitigating factors that militate in favor of declining enforcement action.

According to a dissenting opinion from Supreme Court Justice Samuel Alito, a president cannot disobey statutory commands like the ones at issue in the Mayorkas memorandum. Article II, Section 3 of the U.S. Constitution requires a president to “take Care that the Laws be faithfully executed.”

Alito stated further that a president does not have “the power to disobey statutes that require him to take enforcement actions.” This opinion is supported by strong historical evidence; the claim that presidents do have such power “smacks of the powers that English monarchs claimed prior to the ‘Glorious Revolution’ of 1688, namely, the power to suspend the operation of existing statutes, and to grant dispensations from compliance with statutes.”

The revolution occurred when King James II issued a Declaration of Indulgence that shielded Catholics against England’s penal laws. James was deposed the following year, and the king and queen who replaced him signed the English Bill of Rights, which “emphatically rejected the pretended Power of Suspending of Laws or the Execution of Laws by Rega[l] Authority without Consent of Parl[i]ament.” Many experts think this bill was an inspiration for the U.S. Bill of Rights.

Read more at

https://thehill.com/opinion/immigrat...dential-power/

Published originally on The Hill.

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.