As President Obama reportedly plans to issue a new executive order on how to prioritize immigration enforcement, many Republicans are arguing that the president would be overstepping his authority if he grants work permits to those who have been allowed to stay under his previously announced Deferred Action for Childhood Arrivals order. David Leopold, former president of the American Immigration Lawyers Association, explains why the work permit authority already exists:
Though many argue that DACA grants its beneficiaries work status, in fact, the regulation that grants work status to undocumented immigrants who have been granted deferred action predates DACA and applies to many other categories of people granted deferred action. The federal regulations governing employment under immigration law existed well before DACA. Under those regulations, any undocumented immigrant granted deferred action — under programs that preceded DACA or coincide with it — had already been able to apply for employment authorization. It requires them to demonstrate economic necessity. That applied to anyone granted deferred action either individually or categorically.
Therefore, DACA did not create this authorization to work — and nor would its expansion. It simply created a new category extending an already existing work authorization for beneficiaries of deferred action. The president’s authority to grant work status long precedes DACA, and while it does apply to DACA and would apply to its expansion, it is not a direct outgrowth or creation of either.
Though conservatives throw a fit about what they call an abuse of power, the president clearly does have the authority to order federal law enforcement agencies to put resources into some types of enforcement and not into others. These are the types of choices all law enforcement has to make every day because there is never going to be enough funding to police every possible crime. Every deployment decision made is exactly this same type of choice. The Republicans know this, of course, but they don’t care.