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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.

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By granting deferred action waivers to particular groups of people – noncitizen widows or widowers of US citizens who were unable to gain American citizenship due to the death of their spouses, or applicants for visas under the Violence Against Women Act, for two relevant examples – the executive branch had established precedent for granting deferred action to defined groups of individuals, according to the memo.

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Finally, the immigration lawyers argue that action under various other policies brought hundreds of thousands of Cubans into the country, say, or allowed presidents to permit some Chinese nationals to remain in the US after the Tiananmen Square protests in 1989.

In total, then, Obama’s decision is not an executive overreach, according to this view, but rather an expansion of a policy to a large number of people.

But to the law’s critics, size and scope matter. 

“What’s the purpose of having discretion? The purpose is so that a person enforcing the law can make exceptions to the rule. This is a good thing,” says Matthew Spalding, vice president of American studies at the conservative Heritage Foundation. “However, if you use discretion so broadly in a way that you state, ‘Here’s our new policy,’ at some point that discretion becomes a new law. In a broader sense, that is what’s going on.”

The president’s critics also argue that unlike President Bush, who simply didn’t prioritize the deportation of young illegal immigrants, Obama has instead created a special category of protected individuals. In doing so, they say, he flouts congressional authority.

“Here the administration is implementing a categorical policy not to enforce federal law, which dictates deportation for illegal [immigrants] regardless of their age. Congress has refused to pass such laws and this is an obvious effort to circumvent Congress – something of a signature for this administration,” writes Jonathan Turley, a law professor at George Washington University in Washington, in an analysis.

Rep. Steve King (R) of Iowa, a hardliner on immigration policy, plans to challenge the administration’s move in court, according to several news reports.

Still, Professor Turley says that while the Obama administration has dodged Congress in a dubious fashion, a legal challenge will be hard-pressed to succeed.

“Presidents are given extreme deference in decisions on the enforcement of federal laws,” he writes. “It would be difficult for anyone to challenge this policy for that reason.”

Heritage’s Mr. Spalding said pinpointing illegality would be a challenge.

“As a technical matter, it does get murkier. In this area, as in a lot of other areas, there is enforcement discretion. Think about the guy who pulls you over for a ticket. Sometimes you get a ticket, sometimes you get a warning,” Spalding says.

“I can’t sit here right now and tell you here is the word by which he violated the law as a technical matter,” he continues. “Congress writes these massive laws that are very broad that you could drive a bus through ‘em. And it just happens that’s what President Obama is doing – driving a bus through them.”

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