Why Obama Has the Power to Limit Deportations

John Lennon asked us to imagine that there were no countries. But in 1972, even he found himself in the midst of an immigration dispute.

He came with his wife, Yoko Ono, to the U.S. a year earlier and frequently appeared at anti-Vietnam War rallies and concerts. Sensing a threat, the Nixon administration ordered Lennon to be deported, arguing he had been admitted into the country improperly due to a cannabis possession conviction in London in 1968.

He waged a three-year-long campaign to convince the government to let him stay. In 1975, he got a court to recognize for the first time that the U.S. government has the power to issue an “informal administrative stay of deportation.”

But Lennon’s case was only the beginning. Almost forty years later, politicians are still debating how far the president should be able to go in exercising discretion over deportations.

Republicans have argued for years that President Obama has gone too far in using his powers to set deportation policy. Last week, the GOP-controlled House passed two bills designed to limit the the president’s use of executive authority in many areas, including immigration enforcement.

At the same time, Obama is moving ahead with a broader review of deportations, which could result in changes that cut back on the number of deportations of certain groups of undocumented immigrants who pose no threat to their communities, such as those who are not convicted of other crimes.

The president was responding to pressure from immigrant-rights activists, who have protested the record pace of deportations under his watch (he may have already crossed the 2 million mark). As opposed to Republicans, they have argued that Obama has not used his executive powers enough to prevent the deportation of people who pose no threat to their communities.

Obama has long stressed how said he can do little to limit deportations. Just a week ago he said, “I cannot ignore those laws any more than I could ignore any of the other laws that are on the books.”

In reality, history shows he can do a lot.

Obama has taken executive action on immigration enforcement after Congress has failed to act to change the law. In 2012, two years after the DREAM Act was defeated, the president enacted the Deferred Action for Childhood Arrivals (DACA) program to provide temporary deportation relief to certain young people were brought to the United States without documentation as children.

Citing limited funding for the Department of Homeland Security, the White House said that deportation efforts should not focus on students.

In an essay for Time, President Obama recognized that this was not a “path to citizenship” but only “a temporary stop-gap measure that lets us focus resources wisely while giving a degree of relief and hope to talented, driven, patriotic young people.”

Conservatives ripped Obama for using discretion to ease deportations.

Supreme Court Justice Antonin Scalia entered the political fray when he offered his dissent in Arizona v. United States by accusing the president of selectively invoking “enforcement priorities.” Kris Kobach, the Kansas Secretary of State and immigration hardliner, organized a lawsuit from U.S. Immigration and Customs Enforcement officers who said the DACA program prevented them from enforcing the law. The case, Crane v. Napolitano gained some traction, but was ultimately dismissed by federal Judge Reed O’Connor of Texas on jurisdictional grounds.

Obama should fully embrace his executive authority to ameliorate the deportation crisis. Doing so will surely generate more controversy and complaints from Republicans. But Congress has proven itself unwilling to act and Obama is well within the law to further exercise discretion as a result of the administration’s policy review.

In Aiken County, a recent case in the D.C. Circuit, the court ruled that the federal government had to follow the law in licensing a nuclear waste facility at Yucca Mountain in Nevada. But more importantly with regard to the immigration debate, Judge Brett Kavanaugh’s decision confirmed the president has “a significant degree of prosecutorial discretion not to take enforcement actions against violators of a federal law.”

“The president may decline to prosecute certain violators of federal law just as the president may pardon certain violators of federal law,” Kavanaugh, a Bush appointee, wrote. “The president may decline to prosecute or may pardon because of the president’s own constitutional concerns about a law or because of policy objections to the law, among other reasons.”

John Lennon was able to stay in the United States because he has famous friends and a high-powered immigration attorney. We can do better for the millions of undocumented immigrants in our country. Moving forward, Obama should embrace his power as president to exercise prosecutorial discretion and boldly curtail deportations.

Sam Kleiner is a Fellow at the Yale Law School’s Information Society Project.