Setting deportation priorities is legal and wise


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Still, House Republicans mimic Rivkin’s claim that the president crossed a line separating the powers of Congress and the executive branch by effectively suspending enforcement of certain statutory requirements. But this particular claim of presidential overreach rings especially hollow given the Obama administration’s robust immigration enforcement record, registering more than one million deportations in the last three years.

President Obama and Secretary Napolitano repeatedly reaffirm their commitment to vigorously enforcing the immigration laws. In fact, this administration’s immigration enforcement record is unparalleled in modern times, much to the chagrin of many immigration activists. And the administration makes it clear, including as part of this recent announcement, that only Congress can fix our broken immigration system.

More importantly, House Republicans reach their claim of presidential imperialism by repeatedly misrepresenting the substance of the DHS initiative. The faulty premise Rivkin and the majority hang their analysis on is that "deportation will be sought only for undocumented immigrants who have committed crimes … and that no enforcement resources will be expended on those who do not pose a threat." As much as many advocates of sensible reform might like this to be true, it is simply not the case.

Not even a strained reading of the announcement and the related materials support House Republicans’ interpretation. As Secretary Napolitano’s August 18 letter states, the administration is attempting to “ensure that resources are uniformly focused on our highest priorities.” A uniform focus of resources does not mean an “exclusive” focus, and it does not mean an abdication of responsibility.

Articulating who the highest priorities are—convicted felons—and who the lowest priorities are—people with strong equities who pose no threat—enables the agency to deploy its resources wisely and in a manner consistent with the administration’s values. Contrary to the assertions of those attacking this policy, many individuals without criminal convictions will still be targeted for and subject to removal—for example, individuals who have only been in the United States for a short period, have repeatedly violated immigration laws, or who have no job or family ties. 

Though the announcement seeks to more efficiently direct resources toward high priorities and away from low priorities, it does not provide any class-wide relief from immigration prosecution. The circumstances of each individual who comes before the immigration authorities will still be reviewed on a case-by-case basis. This initiative merely attempts to responsibly align the various agencies' approaches to enforcing the law pursuant to the articulated priorities and given the resources available.

As such, the assertion that undocumented immigrants who evade interdiction at the border and have not committed a crime since entering "will no longer face the prospect of deportation" is simply not true. Just because a jaywalker is not pursued when there are more serious crimes underway does not mean that they no longer face the prospect of being arrested for jaywalking in the future.

Ironically, in his testimony for the majority, Rivkin makes a powerful case for the lawfulness and sensibility of this initiative, conceding two ways in which the president is constitutionally authorized to establish priorities “informed by his policy preferences”: (1) allocation of resources toward particular problems and away from others; and (2) determinations by law enforcement officers about whether and how to direct resources in individual cases.

In other words, he concedes—as he must—that it is very much within the president’s power to allocate resources toward removing criminals and security threats and away from breaking up hardworking families. I’m glad we can all agree.

Marshall Fitz is Director of Immigration Policy at American Progress.