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Immigration highlights the problem of when presidents act like kings

President Biden speaks
Associated Press/Patrick Semansky
President Biden speaks about his proposed budget for fiscal 2023 in the State Dining Room of the White House, on Monday, March 28, 2022, in Washington. 

When former president Barack Obama was asked, in 2011, to stop the deportation of students with an executive order, he said he couldn’t do it: “There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply through executive order ignore those congressional mandates would not conform with my appropriate role as President.”

But he did it anyway a year later when he established the Deferred Action for Childhood Arrivals (DACA) Program, which granted temporary lawful status to undocumented immigrants who were brought to the United States by their parents when they were children.

Then in 2014, he replaced the statutory classes of deportable aliens in INA section 1227 with his own list of deportable alien classes, which severely restricted who could be deported.  Immigration officers needed approval from an ICE Field Office Director to take enforcement action against an immigrant who was not in one of those categories.

Obama justified his action by claiming that he was doing what he thought should be done until the passage of a comprehensive immigration reform bill. 

The flaw in Obama’s position is that if Democratic presidents can disregard the law to “fix” the broken immigration system until Congress acts with their version of a comprehensive immigration reform bill, Republican presidents will be able to ignore the fixes. Republicans have a very different view of how to fix the immigration system.

Biden has gone even further than Obama did.

Biden’s DHS secretary, Alejandro N. Mayorkas, issued enforcement guidelines that replace the deportable alien grounds in INA section 1227 with priority categories that restrict deportation to immigrants who are a threat to our national security, to public safety, or to border security. 

Mayorkas explained that the majority of undocumented immigrants who are subject to removal have been contributing members of our communities for years; therefore, the fact that an immigrant is removable should not alone be the basis for an enforcement action.

Biden also has cut more than 25 percent of the bed capacity at immigration detention facilities in his budget request for the next fiscal year. This would reduce funding for immigration enforcement beds from 34,000 to 25,000. CBP made 1.9 million arrests for illegal border crossings in the first year of the Biden presidency.

States experiencing the negative consequences of Biden’s immigration policies, have been trying to stop him — and they have had some successes. The most recent one occurred on March 22, when U.S. District Court Judge Michael J. Newman granted an application from Arizona, Montana, and Ohio (the states) for a preliminary injunction pending the outcome of a case that critically examines the public safety section of Biden’s enforcement guidelines.

Judge Newman’s decision

The Constitution of the United States gives significant authority to the president over immigration, which includes the discretion at every stage in the removal process to abandon the endeavor. But it gave Congress broad power over immigration too.

Congress has passed an Immigration and Nationality Act that includes classes of deportable aliens, provisions for the apprehension and detention of aliens, and provisions for the detention and removal of aliens ordered removed.

Some of these provisions are permissive, stating that DHS “may” take a certain action, but others are mandatory. And the Constitution has a “Take Care” clause that requires the president to ensure that the laws are faithfully executed.

INA section 1226(c)(1) provides that DHS “shall take into custody” immigrants who have committed specified criminal offenses, and INA section 1231(a)(1)(A) provides that DHS  “shall remove” immigrants subject to final orders of removal within 90 days.

In the most recent lawsuit, the states contend that DHS is skirting the mandates in those statutory provisions with its enforcement guidelines, which, among other things, violates the Constitution’s Take Care clause.

Public safety

The guidelines for this priority category specify that, “Whether a noncitizen poses a current threat to public safety is not to be determined according to bright lines or categories. It instead requires an assessment of the individual and the totality of the facts and circumstances.”

There can be aggravating factors that militate in favor of enforcement action, such as the gravity of the offense and the sentence imposed; the nature and degree of harm caused by the offense; the sophistication of the offense; and the use or threatened use of a dangerous weapon.

Conversely, there can be factors that militate in favor of declining enforcement action, such as advanced or tender age; lengthy presence in the United States; and the impact removal would have on family in the United States.

The overriding question is whether an evaluation of the individual and the totality of the facts and circumstances establish that the immigrant poses a threat to public safety.

Judge’s analysis

Biden’s guidelines displace the custody and removal factors Congress intended immigration officials to consider with an extra-textual totality-of-the-circumstances analysis that governs every step in the enforcement process.

The guidelines provide that immigration officials “should not rely on the fact of conviction or the result of a database search alone” when making an enforcement-related decision. They must weigh the aggravating and mitigating factors against each other.

But INA section 1226(c) mandates the detention of immigrants who have “committed” certain enumerated offenses, and INA section 1227 provides that immigrants convicted of certain criminal offenses “shall” be removed.

Newman concludes that there is a strong likelihood that the states will prevail on their claim that Biden’s public safety guidelines are unlawful. Accordingly, he issued a temporary injunction requiring DHS to refrain from implementing the guidelines. 

The Take Care clause in the Constitution says that the president shall — not “may” — execute Congress’s laws faithfully. As Obama once said, the man in the White House is a president, not a king.

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. Follow his blog at

Tags Barack Obama deferred action for childhood arrivals Illegal immigration Immigration and Nationality Act Immigration detention in the United States immigration enforcement Immigration reform Joe Biden

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