The Supreme Court Has Already Approved Obama’s Executive Action on Immigration

Two and a half years ago, the Supreme Court issued a landmark decision in a major immigration policy case, United States v. Arizona, 132 S. Ct. 2492 (2012), striking down Arizona’s controversial law SB 1070. Just prior to the decision, written by Republican-appointed Justice Anthony Kennedy and joined by Republican-appointed Chief Justice John Roberts, President Obama had issued a broad-policy executive order deferring deportation of certain undocumented youth immigrants, commonly referred to as DACA.

The Court had an opportunity then, in writing about a controversial immigration policy issue, to make clear whether or not President Obama’s executive action represented an overreach of executive authority. In fact, the dissenting opinion written by Antonin Scalia specifically singled out DACA in order to criticize it. While the ruling itself did not specifically mention the President’s executive order by name, it made clear how the Supreme Court’s majority felt about the executive branch’s authority and discretion in matters of deportation.


John Roberts’ Supreme Court has already validated President Obama’s previous executive action, DACA.

At the core of the reasoning that struck down Arizona’s law, which essentially gave state and local law enforcement the authority to enforce federal immigration laws, was that in doing so the states would interrupt federal officers’ discretion whether or not to deport or otherwise punish undocumented immigrants. Not only is remaining in the country as an undocumented person not a crime, Congress specifically gave the executive branch discretion to decide who should be removed. From Kennedy’s majority opinion:

“Congress has specified which aliens may be removed from the United States and the procedures for doing so. Aliens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law. See §1227. Removal is a civil, not criminal, matter. A principal feature of the removal system is the broad discretion exercised by immigration officials. Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal.”

“As a general rule, it is not a crime for a removable alien to remain present in the United States. See INS v. Lopez-Mendoza, 468 U. S. 1032,1038 (1984).”

The federal government routinely and intentionally avoids expending resources and efforts on investigating and prosecuting federal anti-marijuana laws across the country, and those are matters of criminal law. The executive orders President Obama has signed regarding in immigration similarly gives the federal government the opportunity to exercise discretion in which cases of unauthorized immigration merit top priority.

As Justice Kennedy rightfully points out in his opinion, violators of immigration laws as a general matter aren’t “criminals” but are in violation of civil law. There is probably not a more compelling justification for prosecutorial discretion in matters of immigration than this, which determines not to waste resources persecuting people ‘whose only violation of the law is fleeing poverty and oppression from Third World governments.’

Congress has never mandated that all unauthorized immigrants be deported. In fact, they gave that discretion to the executive branch when they specifically chose the language “may be removed” instead of “shall be removed.” President Obama’s recent executive action is nothing more than an exercise of that authority, bestowed by Congress in federal immigration laws.

It is clear from its decision in Arizona vs. United States (2012) that the Supreme Court recognizes the constitutionality of the kind of discretion that is embodied in the recent executive action of President Obama, which simply relieves some immigrants from deportation for a temporary period.