Gov. Paul LePage has joined Texas in a multi-state lawsuit alleging that President Obama’s recent executive action on immigration is unconstitutional. This move has no basis in law. It will amount to an utter waste of taxpayer dollars — and will bring us no closer to fixing our broken immigration system.
The lawsuit comes in response to Obama’s announcement on Nov. 20 that — given Congress’ failure to act — he would use his legal authority to help address the need for immigration reform. Recognizing that he could not re-write our immigration laws, Obama instead announced that he would prioritize certain immigrants over others when deciding whom to deport. The most controversial of those changes involves the decision not to deport people who are here illegally if they are the parents of U.S. citizen or lawful permanent resident children. This means that parents of U.S. citizen or resident children will be granted a temporary reprieve from deportation, but without any path to eventually become U.S. lawful permanent residents or U.S. citizens. It simply means that, for the time being, we are not actively trying to deport them.
I have been an immigration lawyer for nearly a decade, and am also a professor of immigration law at the University of Maine Law School. Along with 134 other experts on immigration law from across the country, I recently signed a letter stating that Obama’s decision not to deport the estimated 4 million-5 million parents who will benefit from this policy change falls squarely within his legal and inherent authority. Presidents from both parties dating back to Dwight D. Eisenhower have used executive authority (also known as prosecutorial discretion) to not deport certain immigrants, given resource constraints and humanitarian concerns. For example, following the Immigration Reform and Control Act of 1986, Presidents Ronald Reagan and George H.W. Bush took action to protect an estimated 1.5 million spouses and children of immigrants, who received status under the law. Presidents Reagan and Bush recognized that it was not in our national interest to tear those families apart.
The issue today is not just about humanitarian concerns; it is also about resource constraints. It is not practicable nor feasible to deport the estimated 11 million individuals who are currently in the U.S. illegally. Although Obama has deported more people than any president in U.S. history, the Department of Homeland Security only has resources to deport approximately 400,000 immigrants each year. Given these figures, the president must decide whom to prioritize.
Obama’s decision not to deport these parents is well-established under the law. It is also the right thing to do. Last year, over 72,000 parents of U.S. citizen children were deported. For our U.S. citizen and lawful permanent resident children, having a parent deported is devastating. Many suffer from depression, poverty (given the loss of one or more primary wage earner), health issues and other complications. Now, parents will be able to support their families without fear of being taken away from their children.
Rather than pursue a baseless lawsuit, LePage and others unhappy with Obama’s decision to exercise his legal and inherent authority should instead encourage Congress to act. Last year, the Senate passed a comprehensive immigration reform bill with buy-in from Democrats, Republicans, labor, business, faith groups and advocacy groups. That bill included provisions that would have provided relief to the very same individuals the president’s recent executive action now seeks to protect. Despite support in the House, Speaker Boehner refuses to send the bill to the floor for a vote. While Obama’s actions will provide much-needed relief to some families, our system ultimately remains broken.
Rather than wasting time and money fighting a lawsuit with no legal basis, perhaps Obama’s executive action should instead be incentive for Americans to pressure Congress to do its job, and address the need for immigration reform.
Anna Welch is Associate Clinical Professor at the University of Maine School of Law. She runs Maine Law’s Refugee and Human Rights Clinic and teaches immigration law.