Binding the Enforcers: The Administrative Law Struggle behind President Obama’s Immigration Actions

Michael Kagan *

President Obama has made executive action and prosecutorial discretion his signature contributions to immigration policy. His aim has been to focus enforcement against immigrants caught at the border or with criminal records while easing the path toward integration for others.[1] These actions—a collection of policies that use discretion to improve the legal standing of millions of unauthorized immigrants or at least shield them from arrest and deportation—may benefit as many as 87% of the unauthorized immigrants in the United States.[2]

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* Associate Professor at the University of Nevada, Las Vegas, William S. Boyd School of Law. B.A., Northwestern University; J.D., University of Michigan Law School. This article benefited from insights and feedback from Jill E. Family, Hiroshi Motomura, and David Rubenstein. All errors are mine.

[1].    See generally Michael Kagan, A Taxonomy of Discretion: Refining the Legality Debate About Obama’s Executive Actions on Immigration, 92 Wash. U. L. Rev. 1083 (2015) (describing President Obama’s immigration policy reforms); Jerry Markon, Obama Administration Scales Back Deportations in Policy Shift, Wash. Post (July 2, 2015), https: //www.washingtonpost.com/politics/dhs-scales-back-deportations-aims-to-integrate-illegal-immigrants-into-society/2015/07/02/890960d2-1b56-11e5-93b7-5eddc056ad8a_story.html (discussing President Obama’s immigration policy shift toward integration).

[2].    Julia Preston, Most Undocumented Immigrants Will Stay Under Obama’s New Policies, Report Says, N.Y. Times (July 23, 2015), http://www.nytimes.com/2015/07/23/us/ politics/most-undocumented-immigrants-will-stay-under-obamas-new-policies-report-says. html. The Obama Administration has made it clear that those people granted deferred action will also receive employment authorization, which, in addition to allowing a person to be legally employed, facilitates obtaining Social Security numbers and other benefits. See Frequently Asked Questions: DACA and Your Workplace Rights, Nat’l Immigration L. Ctr. (July 15, 2015), https://nilc.org/dacaworkplacerights.html. Beyond deferred action, President Obama’s Department of Homeland Security (“DHS”) has announced the criteria it uses to decide whether to prioritize non-citizens for deportation (or non-deportation), which has the potential to allow many unlawfully present immigrants to know in advance whether they are likely to be pursued by Immigration and Customs Enforcement (“ICE”), even if they are not formally granted deferred action. See Markon, supra note 1.