Legal Authority of the President to Act on Immigration - Shankar law

Legal Authority of the President to Act on Immigration

Recently, there has been a lot of news about President Obama acting unilaterally to fix the Immigration Crisis. The question everybody is asking is whether the President has the authority under the Constitution to bypass the Congress.

In order to answer this question let’s briefly look at how our Government is structured. Our Government is divided into three branches: The Legislative, The Judicial, and the Executive. In other words, the Congress makes the laws, the President enforces the laws and the Supreme Court interprets the laws to see whether they are Constitutional.

The President of the United States is given certain powers which he/she can use through Executive Orders. But these Executive Orders cannot infringe on the other two branches of the Government. So the issue now becomes, if the President acts without Congress to stop deportation of certain Immigrants and grant those people Citizenship, is he going beyond the authority given by the Constitution.

Surprisingly the answer may be “no.” From across the country, 136 law professors have stated that the President is within his authority if he chooses to defer deportations for up to 5 million immigrants.

The President can achieve this by something called “Prosecutorial discretion.” What this means is that the President and every agency under his authority (USCIS, Department of Homeland Security, etc.) can refrain from taking action of enforcements. Meaning, they can choose not to pursue an immigrant in Immigration court by not filing paper or not filing Notice to Appear. In addition, under Prosecutorial discretion, they can provide discretionary remedy, such as deferred action.

Note, that by engaging in Prosecutorial discretion it does not give the President the authority to give Immigrants Permanent residency. It does however give him the authority to give lawful presence and to apply for work authorization.

The history of Prosecutorial discretion has been grounded in the Constitution and the Immigration and Nationality Act passed by Congress. Many presidents before Obama have used Prosecutorial discretion, including George Bush Sr., George W. Bush and Ronald Reagan.

If you’re interested in reading the full letter, please click on this link. If you have any questions please give us a call at 212-461-1467.

With the huge influx of children from Central America, the question a lot of people have is “what will happen next?”

Unfortunately, it is very hard to give a simple answer. This link provides a decent overview of what the families might be facing.

Please feel free to leave a comment or if you have any questions contact us at 212-461-1467.


All comments and/or opinions are for general information, and should not be used as legal advice. In addition any comments and/or opinions do not create an attorney-client relationship. In order to obtain a comprehensive and accurate legal opinion you should consult an attorney with the specific and detailed facts or your case/question.