President Obama's "Deferred Action" Program for Illegal Aliens Is Plainly Unconstitutional

In 2010 Congress declined to enact the DREAM Act, which would have bestowed lawful resident status on illegal aliens who had arrived in this country as minors.¹ In September 2011, when pressured by illegal alien advocates to implement the DREAM Act "on his own," President Obama responded: "I just have to continue to say this notion that somehow I can just change the laws unilaterally is just not true."² In June 2012, the president did what nine months before he had insisted he could not do, unilaterally instituting the Deferred Action for Childhood Arrivals program ("DACA"), under which illegal alien "Dreamers" can request a two-year deferral of any action to remove them, along with employment authorization documents.³To date, over 600,000 illegal aliens have been accepted into the program.⁴

In 2013 Congress again declined to enact an immigration bill supported by the president, a so-called "comprehensive immigration reform" that would have given legal status to more than 11 million illegal aliens, including the Dreamers. In November of that year, in response to an illegal alien's insistence that the president had the power to issue an executive order stopping deportations, President Obama responded: "Actually, I don't. ... if in fact I could solve all these problems without passing laws through Congress, then I would do so. But we're also a nation of laws."⁵ On November 19, 2014, the president did what a year before he insisted he hadn't the power to do, allowing approximately 4 million illegal aliens who are the parents of U.S. citizens and legal permanent residents to request a three-year deferral of removal, along with employment authorization documents.⁶ He also extended the stay of DACA beneficiaries by three years and expanded the number of illegal aliens eligible for DACA by about 200,000.

As explained in this report, (1) the president's deferred-action program involves three separate legal steps, (2) each of the three steps is plainly illegal, and (3) the three steps, taken together, amount to an unconstitutional usurpation of Congress's exclusive constitutional authority to formulate immigration policy.