More on the Limits of Presidential Immigration Authority

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.

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About Ed Brayton

After spending several years touring the country as a stand up comedian, Ed Brayton tired of explaining his jokes to small groups of dazed illiterates and turned to writing as the most common outlet for the voices in his head. He has appeared on the Rachel Maddow Show and the Thom Hartmann Show, and is almost certain that he is the only person ever to make fun of Chuck Norris on C-SPAN.

  • Joseph Yaroch

    Their criticisms follow a simple formula. If he does something they don’t like, they call him a dictator, or say he is abusing his power. If he chooses to not do something they want him to do, they say he is weak, complain that he is not showing leadership. On the occasions that they have no choice but to agree with what he did (such as bombing ISIS), they say he did the right thing but, did not go far enough. Or that we went to far. In summary, he is a weak dictator who abuses his power and shows no leadership and always goes too far or not far enough.

  • D. C. Sessions

    JY, you forgot the “and should have consulted with Congress” unless he does, in which case “weakness.”

  • Childermass

    Speaking of immigration, look at this really dishonest petition to end birthright citizenship that pretends the 14th Amendment does not exist:

  • Modusoperandi


  • briandavis


    Or his mouth is closed. That’s when he’s exceeding his authority AND keeping it secret from us.

  • Pierce R. Butler

    Re Modusoperandi @ # 4 & briandavis @ # 5 – Y’all overlook the crucial extra-oral factor: Obama exceeds his legitimate authority so long as he has his unmentionable skin condition.

  • Wes Aaron

    Wait how did he allow these immigrants to stay? I thought that was a law that Bush had put on the books many years prior? And allowing immigrants VISA’s well this was also during the Bush years. Oh… The wealthy can’t put the children to work in their factories so they need to go. Okay I got it. If organizations in this country are willing to provide food, boarding, and legal help that they’ll need. I’m OK with it.

    Maybe now these Tea Party idiots will see just how helpful trying to force science to accept creationism really is. If you give your child a proper education they will be a viable citizen for life, but if your religion must rule education then your child will become another welfare recipient. Who am I trying to kid, they will just blame everyone else for their stupidity as they always have. Not enough rubber boots or shovels to handle their BS forever. Bout time we throw them in the bull pen.