On August 15, 2014 President Obama's Department of Homeland Security announced a series of executive actions on immigration in response to the Ebola outbreak in West Africa. Specifically, Obama granted nationals of Guinea, Liberia and Sierra Leone a number of new avenues they could persue to avoid being deported back to their Ebola inflicted homelands.
While some may have questioned the wisdom of these executive actions on immigration, no one doubted that they were completely lawful uses of Obama's prosecutorial discretion powers as the nation's chief immigration law enforcement officer.
In fact, virtually all presidents have exercised similar powers in the past including:
- In 1987, President Reagan eased immigration standards for 200,000 Nicaraguans who feared persecution from the communist Sandinista regime. Reagan expedited work authorizations for the Nicaraguan exiles and promised them asylum, even for those who had been previously denied.
- In 1991, President Bush Sr. granted deportation relief to hundreds of Kuwaiti nationals who had been evacuated to the United States during the first Gulf War.
- In 1998, President Clinton halted deportations for an estimated 150,000 Nicaraguans and Hondurans after a hurricane ravaged their countries.
- In 2005, President Bush Jr. granted foreign students affected by Hurricane Katrina extended work permits.
But while presidents unquestionably have the power to exercise immigration enforcement discretion in order to further foreign policy or humanitarian goals, what they do not have the power to do is functionally rewrite U.S. immigration law, which is exactly what Obama's impending executive action on immigration would do.
The past incidents listed above were all in response to specific humanitarian crises or foreign policy events. They all were narrowly tailored to help specific subsets of immigrants.
Obama's impending executive action is the exact opposite. He is planning on giving work permits, Social Security numbers, and drivers licenses to as many as 8 million illegal immigrants. This is not narrow humanitarian relief. This is a flagrant attempt to get around Congress's exclusive Article I power "to establish a uniform rule of naturalization."
Obama is the first president in the history of the United States to abuse his executive prosecutorial discretion powers in this manner. Because no president has abused this power on this scale before, there is no case law that details the scope of a president's prosecutorial discretion.
But just because the case law isn't there yet, doesn't mean there are no limits to Obama's power.
For example, as commander in chief, presidents have always had the power to detain enemy combatants during wartime. But that does that mean a president could detain a declared "enemy of the state" thousands of miles away from any battlefield on an island prison indefinitely?
But Congress does not have to wait for the Supreme Court to rule before they check Obama's power grab. Congress can use its power of the purse to force Obama to wield his executive law enforcement power within the bounds of historical norms. They can pass an appropriations bill forbidding the Department of Homeland Security from spending any money issuing any documents pursuant to Obama's prosecutorial discretion power above a certain number. Say 100,000 or so.
This would still afford Obama the same immigration executive powers as past presidents, but it would also prevent him from abusing that power in an unprecedented and dangerous way.