ImmigrationSupreme Court suggests Obama’s DREAM initiative is legal
On 15 June the Obama administration announced a new deportation policy, saying that it would defer deportation action against undocumented immigrants in several categories; the administration based its decision on the doctrine of “prosecutorial discretion”; critics charged that such deferment policy is illegal; the Court, in its decision on Arizona SB 1070, suggests the administration is right, saying: “A principal feature of the removal system is the broad discretion exercised by immigration officials”
The Supreme Court’s Monday decision gave the Obama administration two victories, not just one. The first victory was the rejection of the major provisions of Arizona’s tough SB 1070 immigration law, and the reaffirmation of federal supremacy on immigration issues. The second victory was a strong suggestion that the Court views Obama’s recent immigration directive, which was modeled after the DREAM Act, as legal. As Judd Legum notes, the Court emphasized that the law gives the federal government broad discretion to decide who to deport.
Here is the language of the decision (emphasis added):
Congress has specified which aliens may be removed from the United States and the proceduresfor doing so. Aliens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law. See §1227. Removal is a civil, not criminal, matter. A principal feature of the removal system is the broad discretion exercised by immigration officials. See Brief for Former Commissioners of the United States Immigration and Naturalization Service as Amici Curiae 8–13 (hereinafter Brief for Former INS Commissioners).
…Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service.
The Court decision implicitly rejects the argument made by Kansas Secretary of State Kris Kobach who said President Obama’s new policy not to deport DREAM Act-eligible youth is “deeply troubling.”
Kobach, who helped draft the tough immigration laws in Alabama and Arizona, said that the administration’s “deferred action” policy with regard to some categories of illegal immigrants was “illegal” because it violates a section of the 1996 Immigration Reform Act. “What the president is describing is a policy that we will refuse to initiate deportation proceedings,” he said.
The Obama administration, on 15 June, justified its new immigration policy under a doctrine known as “prosecutorial discretion.”
The Supreme Court has now upheld the administration’s discretion argument.
It is also interesting to note this: in explaining why it was rejecting the provision in SB 1070 which would allow Arizona law enforcement to detain illegal immigrants even if they had not committed any other offense, the Court, on page 17 of the opinion, explicitly lists “a veteran” or a “college student” as two examples of undocumented immigrants who should not experience “unnecessary harassment” by being detained by Arizona officials just because they might be undocumented.
The administration’s new deportation policy, announced 15 June, stipulates that the administration would defer deportation action against undocumented immigrants in several categories. Among these categories: immigrants who graduated from high school, those who are in college or who have graduated from college, and those served in the U.S. military.
