The hot topic up for debate currently is whether President Obama has the legal authority to take action on the Immigration Reform on his own. The Supreme Court of the United States ruled in 2012 that the president of the United States has the authority to exercise prosecutorial discretion in the area of immigration. Despite that, Fox News, a Republic based entity which openly criticizes President Obama at every opportunity, is presently arguing that the President’s intended actions on immigration reform may be unconstitutional.
Fox’s news anchors Sean Hannity argued on the air on November 6th, that the President “many not have the authority” to take executive action when it comes to immigration issues. On November 7th, Andrea Tantaros, the co-host ofOutnumbered, a Fox new program, stated that the President did not care about the Constitution and the only way he could get away with any executive action on immigration reform was because “some pointy-nosed Harvard lawyers will argue whether or not it is constitutional.”
Despite Fox’s refusal to accept the possibility of the President’s authority, most legal constitutional experts agree that the President’s promise to move forward with an immigration policy, is constitutionally sound. A letter, signed by over 100 legal experts in the field explained that prosecutorial discretion is a policy that is in practice in most law enforcement situations and also includes immigration law. The letter outlined that prosecutorial discretion may allow agencies to refrain from acting on enforcing laws such as arresting undocumented individuals, and serving them with a Notice to Appear in Immigration Court for removal proceedings. Prosecutorial discretion is a form of relief currently available to an individual is placed in proceedings before the Immigration Judge or before USCIS. This particular form of relief does not accord lawful permanent residency, also known as a green card. Rather, it allows the individual to remain in the country, with a stay of removal or deportation for a fixed or sometimes indefinite period of time. The individual would receive authorization to work and following that, the opportunity of obtaining a state-issued driver’s license.
On November 6th, the Fox New program, The O’Reilly Factor, discussed prosecutorial discretion with legal correspondent, Lis Wiehl. Wiehl mentioned several memos written by former United States Immigration and Customs Enforcement Director John Morton, commonly referred to as the Morton Memos. The language in these memos to the agency, especially aimed at the Immigration and Customs Enforcement Deportation and Removal Officers, instructs them to use prosecutorial discretion before arresting an undocumented individual. The officers and agents are encouraged to refrain from detaining undocumented individuals unless they are a convicted felon or have committed a multitude of crimes. O’Reilly’s group discussed these memos and highlighted the fact that they were not legally binding. However, they were not able to argue that prosecutorial discretion was unconstitutional.
On November 6th, Fox New Host, Megyn Kelly, in her program, The Kelly File, had to admit that the President does in fact have the executive authority to take an action on immigration reform and rule on enforcement of the current immigration law.
The President is currently considering two plans of action on the immigration front. The first is to extend the Deferred Action for Childhood Arrivals (DACA) initiative that he put into place recently. Another idea that is being discussed is to accord status to parents of children born in the United States.