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Was Obama’s move on immigration legal? Lawyers' memo makes the case

A memo by six immigration lawyers, written more than a year ago, argues that historical precedent supported Obama's authority to take action. Critics decry an effort to circumvent Congress.

By Staff writer / June 19, 2012

President Barack Obama prepares to pose for a family picture at the G20 Summit in Los Cabos, Mexico, June 18.

Henry Romero/REUTERS

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Washington

President Obama’s decree to allow certain illegal immigrants to remain in the United States follows broad historical precedent, according to a memo prepared by proponents of the president’s move.

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While conservative critics allege that Mr. Obama’s executive action Friday impinges on congressional authority, they also allow that the president does have significant leeway to make such changes.

Written by six immigration lawyers, the April 2011 report details the rationale for the maneuver according to those who had been pressuring the White House to take such a step in meetings and briefings over the past year.

“The question has been, ‘Did [the president] have the legal authority?’ ” Sen. Bob Menendez (D) of New Jersey told reporters on Friday. “Could he ultimately produce an administrative relief that could be sustainable? I and others gave him examples of those administration reliefs that other presidents, Democrats and Republicans, had, and I’m glad to see that he has come to this conclusion.”

Obama's policies would allow certain illegal immigrants a renewable two-year deferral from deportation and make them eligible to apply for work authorization. Those affected are individuals who were less than 16 years old when they were brought to the US but are now under age 30; have lived in the US for at least five continuous years; are in school or have graduated from high school or are serving in the military; and have not been convicted of a felony or a significant misdemeanor.

The Department of Homeland Security estimates that this change would affect 800,000 people.

The immigration lawyers’ memo argues that expressing discretion about who gets prosecuted under federal law is in fact common across the US; that once prosecuting objectives are set, the executive branch has the authority to grant “deferred action” under a wide array of circumstances; and finally that prior administrations have used a variety of provisions to achieve similar policy objectives.

“Our nation’s immigration laws must be enforced in a firm and sensible manner,” said DHS Secretary Janet Napolitano in a statement accompanying the president’s decision. “But they are not designed to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language. Discretion, which is used in so many other areas, is especially justified here.”

Choosing whom to prosecute is something immigration officials and police departments do all over the United States every day, the memo argues.

As such, directing that judgment “is not contrary to current law,” the memo reads, “but rather a matter of the extension and application of current law to contemporary national needs, values and priorities.”

This piece of the argument is particularly important to fend off criticism that DHS has decided to stop enforcing the nation’s deportation laws – they’re being enforced, the president’s backers can argue, but the authorities are focusing on criminals and other more important cases first.

Next, the memo posits that DHS already allows certain individuals to stay in the US under a designation known as deferred action that has few restrictions: It’s currently outlined as a process driven by “the discretion of the agency or at the request of the alien, rather than an application process.”

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