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  • 10 Immigration Agents Challenge Obama Administration’s Non-Deportation Policy

    As described in a new Heritage Issue Brief, 10 Immigration and Customs Enforcement (ICE) officers have filed a lawsuit against Secretary of Homeland Security Janet Napolitano and ICE director John Morton.

    The suit seeks to invalidate the Administration’s recently implemented “deferred action” initiative, which defers for at least two years the removal of an estimated 1.76 million illegal alien minors and young adults who meet certain eligibility requirements. The Administration has defended this initiative as an exercise of “prosecutorial discretion.”

    Imagine the uproar if a President were to announce that he was exercising “prosecutorial discretion” by directing Internal Revenue Service agents and federal prosecutors not to investigate or prosecute those who fail to pay capital gains taxes.

    President Obama tried and failed on multiple occasions to persuade Congress to pass the DREAM Act. Just last year, he told a group of Hispanic activists that he lacks the constitutional authority to implement the DREAM Act by executive fiat: “The idea of doing things on my own is very tempting, I promise you, not just on immigration reform. But that’s not how our system works. That’s not how our democracy functions.”

    President Obama is now attempting to effectively implement most of the DREAM Act through this new initiative, thereby undercutting the legislative process and eroding respect for the rule of law.

    The plaintiffs allege that deferred action has traditionally been used for the benefit of a small number of aliens facing unusually distressing situations (such as those who would be removed to countries devastated by civil war or natural disasters) for limited periods of time. They also allege that in passing the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Congress sought to reduce executive discretion when it comes to enforcing federal immigration laws.

    The plaintiffs claim that they have been placed in the untenable position of having to choose between following a directive that violates federal law or facing disciplinary action if they refuse to comply.

    The plaintiffs face an uphill battle regardless of how abusive this new initiative may be in terms of violating the spirit—if not the letter—of the Constitution’s separation of powers, as well as the executive’s obligation to “take Care that the Laws be faithfully executed.” Although the challenge is by no means frivolous, a court may be reluctant to conclude that the plaintiffs have standing. Even if they are able to establish an “injury in fact,” a court may be tempted to cite prudential standing rules in order to avoid reaching the merits.

    Additionally, even if a court concludes that the plaintiffs have standing, courts have shown great reluctance to intrude in areas where agencies have traditionally exercised a great deal of discretion, such as enforcement or non-enforcement decisions. The Supreme Court has on prior occasions also stated that, absent extraordinary circumstances, exercises of prosecutorial discretion by federal agencies should not be subject to judicial review.

    Although understandably aggravated, the plaintiffs may well have a difficult time prevailing. Furthermore, given the significance of this issue, Congress ought to weigh in and not wait for the issue to bubble up through the court system.

    Either way, this standoff will most likely be resolved in a political forum rather than in a court of law. As stated by Heritage’s Jessica Zuckerman, “Any hope for true solutions to our nation’s immigration challenges should begin with respecting the rule of law.”

    Posted in Featured [slideshow_deploy]

    14 Responses to 10 Immigration Agents Challenge Obama Administration’s Non-Deportation Policy

    1. Daniel says:

      Rule of law? really since when did rule of law work for immigration?

    2. ChuckUnderscore says:

      Good luck to all of you. It takes courage to do the right thing. You're doing the right thing!

    3. Bobbie says:

      look at all this weight in the court systems that would only be for the people had Obama's government respect to do his job required for the people. American government suing American government because of American government failures to do his job!!!! This American administration has no authority to ignore the safety and protection of the people otherwise known as THEIR DUTY!!!!

      • Fred E. Vanosdall says:

        There is still the double standards of what elected government officials do with out the law and what the rest of us can do with the law. Its somethingfor everyone to remember on Election Day in November.

    4. Vote AGAINST Obama and every politician that supports ILLEGAL migrants, over LEGAL residents. I'm voting for anyone except Obama, even Mitt.

      • Sam says:

        Because Mitt is so much better right? Well go ahead if you prefer an America where the richest are given even more breaks but the elderly, the youth, and the poor (which really includes about a third if not more of the so-called "middle class") are deprived of aid they need but are still imposed with even more taxes and fees that they cannot afford. Hell, with Obama we have two options, work harder to get a job where you are above the 1$ an hour immigrants and make decent money, or file for the large array of government aids that the illegals cannot obtain.

    5. Pete Houston says:

      How far away are we really from the villagers going to the castle with pitchforks and burning torches to overthrow the king? However, it will be a clean castle when the tea party crowd leaves or it will be a dump when the occupy wallstreet crowd leaves.

    6. Carol, AZ says:

      Dept of HLS and ICE Czar_ John Morton is so deeply "in contempt" to carry out these actions and at least ten others ex, fiat actions, by el senor_ ALL without Congressional approval.
      What will it take to get rid of them.__Meanwhile a trial in AZ has ended convicting Cartel operatives that pleaded guilty in the conspiracy, "to acquire Stinger missile and other military grade hardware for use by the Sinaloa Cartel._2,029 grams of pure Meth and $139,900 for partial payment offered as down payment. "
      Thank you ATF, DCIS, DEA Special Agent in charge , Doug Colemen. US Attorney Office district of AZ., Josh Parecki, ASST. US Attorney, District of AZ, PHX and Robert J Sander, Trial Attorney, Counterterrorism Section , National Security Division , Dept of Justice and all law enforcement agencies that work this case.
      re : http :www.dea.gov.

    7. Mike, Wichita Falls says:

      Imagine the uproar if a President were to announce that he was exercising “prosecutorial discretion” by directing his DOJ to drop a case of voter intimidation. Wait a minute…this one already has.

    8. mike swann says:

      obama will win out no matter what. he does what he wabts just as holder does. if congres tries to vote his policies, the demos in the senate vote o' sway. rats in a nest. illegal is illegal and o or any other democrat is ever going to pay attention to our constitution. o let the gate open and now presidents will ignore what our founding fathers wanted.

    9. MALCOLMx says:

      this is all about the election in 2012;; buying votes is obama's forte.t

    10. MALCOLMx says:

      so approve it

    11. Fred E. Vanosdall says:

      It appears that – the direct link between citizenship in the U. S and the right to vote is actually more important than "prosecutorial – dah – privilege. Just how do these – Executive, – Judical and Legislative branches of our government, maintain a balance of power on the basic issue of every foreign born person becoming a Citizen in the U. S.? What was good enough for my grandfather is good enough for other foreign born persons. Who has the right by law to change the status of immigrants – certainly not a president.

    12. David says:

      Unfortunately this isn't new. President Bush basically told the EPA to stop enforcing the Clean Air Act. It is no different than all the "signing statements" the president puts on a bill that basically alters what congress has passed. The Exective's job is to execute the laws passed by the government. When they choose not to do so the courts have little standing to fix it. That's what impeachment is for. You don't have to break a law to be impeached. But with congress split 50/50 and a 2/3's majority needed to oust a president neither side is about to send their own hard won presidential winner out of office and chance the other side gaining groud.

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