Deferred Immigration Action and the Limits of Executive Enforcement Discretion

Abstract: The Deferred Action for Childhood Arrivals (DACA) scheme was first announced by President Barack Obama in 2012, and subsequently extended in 2014. DACA allows for illegal immigrants who meet certain criteria to apply for deferred action status, which exempts them from deportation proceedings for two-year periods. From its inception, the Administration has justified DACA’s legality based on the notion of “prosecutorial discretion,” that is, the wide latitude given to the government in deciding whether to initiate prosecutions for legal violations. Nevertheless, DACA has been the subject of fierce controversy since 2012: critics of the Administration maintain that it represents an impermissible abdication of the President’s constitutional duties, and amounts to a unconstitutional act of law-making by the President. This article argues that DACA represents a lawful exercise of prosecutorial discretion, but that President Obama’s overuse of the concept may have unwelcome consequences for the constitutionally-enacted balance of power between Congress and the President.

Author: Yuan Yi Zhu is a fourth-year at McGill University, majoring in Political Science and History.

Read More