If you had enough money in a government program to deal with only 400,000 people, but had an 11.5 million person “problem,” what would you do? Obviously, you’d try to figure out how best to choose the 400,000.

That’s what the Obama administration did last November in deciding how to enforce immigration laws.  


Given limited enforcement funding, the Department of Homeland Security (DHS) decided to use established and sensible immigration enforcement priorities to protect “national security, border security, and public safety.”  It directed its officials to exercise their discretion, on a case-by-case basis, to advance those objectives and to defer deportation of law-abiding parents of children lawfully in the country.

While opposition to this decision was not surprising, what was surprising was much of the misleading rhetoric. The administration’s initiative was not only criticized as bad policy or politics, but lawless. 

Typical sound bites included “without precedent,” “unilateral authority the Constitution doesn’t give,” and an “executive fiat” that "abdicated [the President's] responsibility to uphold the Constitution."   Some in the supposedly objective media were taken in and inadvertently tilted the public debate in their reporting.  Even before DHS issued the policy, the Washington Post alleged the program would “expand the authority of the executive branch into murky, uncharted territory.”

Wrong. Legal authority for the administration’s approach has been thoroughly charted by past administrations and, most important, by laws passed by Congress.  As former Members of Congress, we served in recent Congresses that enacted major parts of our immigration laws.  

In a friend-of-the-court brief filed with the federal appeals court in New Orleans, we explained that the enforcement priorities formalized by the DHS policy match those of all recent administrations and rest on specific statutory provisions, some longstanding and some passed as recently as this year.  DHS’ approach – case-by-case exercise of discretion to defer deportation – has been used by administrations of both parties and repeatedly endorsed by Congress.

As noted, Congress has provided funding to cover only 400,000 deportation removals a year, or less than 4 percent of the estimated 11.5 million unauthorized residents.  Given this huge funding shortfall, setting enforcement priorities is essential, and the particular priorities selected by the Administration are indisputably lawful.

They are lawful because they reflect laws passed by Congress.  For example, in appropriating funds to DHS, the current Congress told DHS to prioritize “the identification and removal of aliens convicted of a crime by the severity of the crime.”  The DHS policy clarifies  those priorities to officials charged with implementing them, and makes DHS enforcement policy transparent—to the public, and, for that matter to Congress.       

As former members of Congress, we are well aware that Congress has delegated significant discretion to the President to determine how best to enforce the nation’s immigration laws. 

For example, the Homeland Security Act of 2002 expressly directs the executive to establish “national immigration enforcement policies and priorities.”  And a House Committee Report to the 2010 DHS appropriations bill spoke in terms completely consistent with the current Administration initiative.  The Report instructed DHS not to “simply round up as many illegal immigrants as possible,” but to ensure “that the government’s huge investments in immigration enforcement are producing the maximum return in actually making our country safer.”

Congress has repeatedly endorsed in legislation the “deferred action” methodology utilized to implement these priorities, a methodology the Supreme Court 16 years ago recognized as a “regular practice” long used by the executive branch in “exercising discretion for humanitarian reasons or simply for its own convenience.” 

Critics also frequently – and erroneously – claim that the DHS policy unlawfully prescribes work authorizations for those affected.  Wrong again.  Regulations adopted in 1981 by President Reagan’s Attorney General (the Justice Department then administered the immigration laws) authorize many categories of aliens who lack formal immigration status, including those accorded deferred action, to work if employment is an economic necessity.  That authority was confirmed in a 1986 law passed by Congress, expressly endorsing the Attorney General’s power to do so, and is independent of the DHS policy announced last fall.

In short, the President’s immigration action isn’t novel, certainly isn’t without precedent, and is manifestly lawful.  People may differ over the Administration’s immigration initiative on political and policy grounds.  But there shouldn’t be any debate about its legality.

Barnes served in the House 1979 to 1987; Berman, 2003 to 2013; Fazio, 1979 to 1998; Gonzalez, 1999 to 2013; LaHood, 1995 to 2009; Miller, 1975 to 2015; Reyes, 1997 to 2013; and Skaggs, 1987 to 1999. All served when key components of the nation’s immigration laws were drafted, debated, and passed.