There is an adage every young lawyer learns: If you have the law, pound the law; if you have the facts, pound the facts. But if you have neither, pound the table.
The heated Republican rhetoric in response to President Obama's immigration announcement is unquestionably table-pounding. His opponents have neither the law nor the facts on their side, so they have resorted to name calling and threats. House Speaker John Boehner (R-Ohio) issued a news release referring to "Emperor Obama," while Sen. Ted Cruz (R-Texas) accused him of being like a monarch and of having a "temper tantrum." Some conservative legislators have called for censuring the president, or even initiating impeachment proceedings.
As a matter of law, however, it is absolutely clear that Obama has the authority to decide not to prosecute or deport anyone he chooses. Prosecutorial discretion is an inherent part of presidential power. The Supreme Court in United States vs. Nixon declared: "The Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case."
No one believes that the federal government has to prosecute every violation of every federal crime or to deport every person who is eligible for deportation. The federal government, for example, long has not prosecuted people caught with small amounts of marijuana even though it violates the federal controlled substance act.
Choices about whether to prosecute are based on a wide array of policy considerations, including how to best allocate scarce prosecutorial resources and whether enforcing a law produces desirable outcomes. Constitutionality is another issue that can be taken into account. It is well established that the president does not have to enforce laws that he believes to be unconstitutional; indeed, to do so would violate his oath of office to uphold the Constitution. Nor does the president have a constitutional obligation to enforce laws he believes to be unwise.
All of this is especially clear in the area of immigration policy. The Supreme Court long has recognized that immigration and deportations are closely tied to foreign policy, which is uniquely in the domain of executive power and control. The executive discretion granted by the Constitution certainly includes deciding whether to bring deportation proceedings. Throughout history, the federal government has chosen — for humanitarian concerns or foreign policy reasons — to not try to deport some individuals or classes of individuals, even though they are not lawfully in the United States.
Republican presidents have used this discretion as much as Democratic ones. In 1987, in a decidedly political move by a president who opposed the Sandinista regime, the Reagan administration took executive action to stop deportations of 200,000 Nicaraguan exiles. In 1990, President George H.W. Bush, to advance his foreign policy, stopped deportations of Chinese students and in 1991 prevented hundreds of Kuwait citizens who were illegally in the United States from being deported. In 2001, President George W. Bush limited deportation of Salvadoran citizens at the request of the Salvadoran president, ordering that deportation decisions include consideration of factors such as whether a mother was nursing a child or whether an undocumented person was a U.S. military veteran.
All of the Republican anger cannot obscure the legal reality: The president has the authority to decide to suspend deportations. Likewise, the facts support Obama. A cruel aspect of immigration policy is that it often separates parents, who are in the United States illegally, from their children who are U.S. citizens because they were born in this country.
Nora Sandigo, in Miami, has a sticker in her car that says "Every child is a blessing." It is a reminder for her as she drives around to pick up yet another child whose parents have been deported. Since 2009, Sandigo has taken legal guardianship of 812 U.S. citizens whose parents have been deported. "La Gran Madre" is what many call her, but she knows her limitations. "All I can do is hold back some of the bleeding. There is no way I can give 812 children the love and attention they need, but … the system is broken."
It is estimated that there may be as many as 5 million parents in this situation. The irony is that Republican rhetoric for years has emphasized "family values," but it is Obama who is acting in a profoundly pro-family way.
Erwin Chemerinsky is dean of the UC Irvine School of Law. Samuel Kleiner is a fellow at the Yale Law Information Society Project.