Is it Constitutional to Suspend Deportations? What About Work Permits?

As much I’m OK with suspending deportations from a policy perspective, can the president constitutionally suspend deportations?

If you replace “suspend deportations” with “we will deport unauthorized immigrants who have not committed a violent crime ONLY AFTER we finish deporting every unauthorized immigrant convicted of a violent crime” (read: a long, long time from now — if ever), then that just sounds like prosecutorial discretion. It’s no different that letting someone arrested for public intoxication out of jail because we don’t have the resources to try every publicly drunk person out there. That doesn’t mean we technically can’t re-arrest that person and try them later (at least until the statute of limitations runs out), it just means we’re not going to do it any time soon.

One catch: Obama is saying that the deportation suspension will last three years. But he’s only in office for another two. If his (possibly Republican) successor decides to re-start deportations, I’m not sure that the Obama’s three-year promise will carry much weight in court.

What I’m not so sure about is the granting of work permits. You could argue that this power is incident to the president suspending (or deferring) deportations, but that seems like a stretch. This would be an affirmative act by the executive branch, as opposed the president simply declining to spend a limited pool of resources in a certain way. And given that Congress has already capped the total number of work-related visas to begin with, it’s an affirmative act that conflicts with Congress’s stated intent.

One possibility is to simply treat the “work permits” as the president saying he will defer prosecuting any employers who hire unauthorized immigrants with such a permit. But again — seems like a stretch.

Cross-posed on Facebook.