Executive Discretion As to Immigration: Legal Overview [November 10, 2014]   [open pdf - 436KB]

"President Obama announced in June 2014 that he would seek 'to fix as much of our immigration system as I can on my own' through administrative action. Although the Obama Administration has not yet announced the specific immigration actions it intends to take, the President has stated that they will occur before the end of the year. It seems likely that such actions will prompt heated legal debate concerning the scope of the Executive's discretionary authority over immigration matters, including with respect to the enforcement of immigration-related sanctions and the granting of immigration benefits or privileges. Such debate may be similar to that which followed the 2012 launch of the executive initiative commonly known as Deferred Action for Childhood Arrivals (DACA), under which certain unlawfully present aliens who were brought to the United States as children may be granted 'deferred action' (a type of relief from removal) and work authorization. While some have argued that DACA constitutes an abdication of the Executive's duty to enforce the laws and runs afoul of specific requirements found in the Immigration and Nationality Act (INA), others have argued that the initiative is a lawful exercise of the discretionary authority conferred on the Executive by the Constitution and federal statute. Executive discretion over immigration matters is informed (and, in some instances, circumscribed) by statutory delegations of authority and constitutional considerations. In some cases, a particular immigration policy or initiative might be premised on multiple sources of discretionary authority. These sources include the following: Express delegations of discretionary authority by statute, prosecutorial or enforcement discretion deriving from the Executive's independent constitutional authority, and discretion in interpreting and applying immigration law. This report discusses these sources in further detail."

Report Number:
CRS Report for Congress, R43782
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