Selective Deportation of Illegal Immigrants: Less Than Faithful Execution of the Laws

The United States Constitution (a great read for those in Washington who have not yet read it, I highly recommend it) mandates that the President of the United States “shall take care that the laws be faithfully executed.” Art. II, § 3, cl. 4. Of course, when it comes to many laws on the books, a faithful execution is open to varying interpretations. The Obama administration last Thursday took it to a new level by implementing a policy of selective deportation of illegal immigrants.

In a statement posted to the White House website by Cecilia Muñoz, the White House Director of Intergovernmental Affairs, the administration announced that the President had directed the Department of Homeland Security (DHS) to prioritize the removal of illegal immigrants who have committed crimes in our country. DHS will review, on a case-by-case basis, those who are slated for deportation. If you are part of the favored groups outlined in a June 2011 Immigration and Customs Enforcement (ICE) memo written by Director John Morton, then you have far less to worry about now than when you broke the law in entering this country illegally.

That bears repeating: illegally

The administration seems to conveniently ignore that entering this country without permission is a crime. While prosecutors have always had the power to use their discretion in enforcing the laws based on a variety of factors, generally there are few executive-level policy pronouncements that grant amnesty to law-breakers as a matter of course. If you don’t like the law, then change it; some in Congress tried – but failed – to pass the “DREAM Act,” which would have enacted as law similar policy. Now the administration wants to change the law by fiat. 

The Federation for American Immigration Reform described the new policy as “an amnesty program for millions of illegal aliens” that violates the separation of powers and clear mandate of Congress. After all, the law (8 U.S.C. §1325) states very clearly that illegal entry is…illegal. Furthermore, any alien who is in this country in violation of the law is deportable (8 U.S.C. §1227). There is nothing in the letter or spirit of these laws that grants the power to selectively decide who is and who is not worthy of deportation. If you are here without permission, you’ve not only broken the law at least once, you’re also to be deported.

Everyone agrees that the most dangerous criminals who are here illegally should be our first priority for deportation. But that does not make them the only priority. Surely we have the resources and ability to make sure the laws are equitably and fairly enforced. There should be discretion for prosecutors and judges to determine the appropriate remedy for a violation of a law, but no governmental policy should give blanket amnesty to people already caught violating the law. Prioritizing efforts in enforcement and resources is one thing. Using subjective criteria to favor certain people on whom resources have already been expended in investigation is entirely different.

Depending on how the administration actually implements this policy, it is certainly open to challenge as a violation of the Constitution and laws of the United States. WLF will continue to monitor developments as we seek to enforce this nation’s immigration laws, whether certain politicians and policy-makers like it or not.

Last Week At WLF

New Publications:

From The Legal Pulse:


Finger on the Pulse: From Our Blogroll and Beyond

  • Last week, we noted an American Constitution Society analysis of Twombly and Iqbal.  One of our friends in the legal blogosphere (correctly) found it unpersuasive (Drug & Device Law)
  • Updating federal law to reflect tech realities: government help, or intrusion, into “cloud computing”? (TechNewsWorld)
  • FTC to come to print journalism’s rescue? (Tech Daily Dose)
  • Due process in class actions the winner in Justice Scalia’s action to stay the “remedy” in a tobacco suit in Louisiana (Consumer Class Actions & Mass Torts)
  • House of Representatives’ unanimously-adopted bill to debar from government contracts anyone “found to be in violation” of the Foreign Corrupt Practices Act is entirely impotent, says one expert (FCPA Professor)
  • High Court to further consider status of corporation as “person” under federal law, this time FOIA (First One @ One First)
  • Appellate advocate Miguel Estrada matches wits with 7th Circuit’s Posner in Black v. U.S. case on remand from SCOTUS (Am Law Daily)
  • Thoughts on recently declassified federal court ruling on Gitmo detainee’s habeas corpus petition (Lawfare)
  • Plaintiffs’ lawyers never sleep: attorney ad trolling for financial fraud whistleblowers shown before Wall Street 2 movie (NY Post via Overlawyered)
  • High Court asked to weigh in on standard for invalidating patents in infringement litigation (Patently-O)
  • Applying SCOTUS’s Morrison case, 2nd Circuit finds RICO doesn’t apply extraterritorially (Volokh Conspiracy)

Last Week At WLF.

New Publications:

Litigation Updates:

  • Ashcroft v. Al-Kidd.  On August 18, 2010, WLF filed a brief in the U.S. Supreme Court, urging it to review (and ultimately overturn) an appeals court decision that allows the ACLU to go forward with a challenge to the Bush Administration’s anti-terrorism policy.
  • Cappuccitti v. DirecTV.  On August 18, 2010, WLF urged the U.S. Court of Appeals for the Eleventh Circuit to reconsider a recent panel opinion that would severely undermine the Class Action Fairness Act (CAFA).
  • Commonwealth of Pennsylvania v. Janssen Pharmaceutica, Inc. On August 17, 2010, the Pennsylvania Supreme Court sidestepped a ruling on the propriety of pay-to-play bidding on public contracts, ruling that a defendant being sued by Pennsylvania lacked standing to argue that the State’s attorneys should be disqualified.

From The Legal Pulse:

Last Week At WLF

Five New Publications:

  • Conversations With: Threats to Philanthropic Freedom. Features The Honorable Dick Thornburgh, Of Counsel to the law firm K&L Gates LLP, leading a discussion with Dr. Larry P. Arnn, President of Hillsdale College; Heather R. Higgins, President and Director of the Randolph Foundation; and Adam Meyerson, President of the Philanthropy Roundtable.

Litigation Updates:

  • Commonwealth of Va. v. Sebelius.  On August 2, 2010, the U.S. District Court for the Eastern District of Virginia rejected a request by the federal government to dismiss a constitutional challenge to a controversial new federal health care law. The decision was a clear victory for WLF, which had filed a brief in the case in support of the Commonwealth of Virginia’s constitutional challenge to the recently enacted Patient Protections and Affordable Care Act (PPACA).

  • Therasense, Inc. v. Becton.  On August 2, 2010, WLF filed a brief in support of the plaintiffs-appellants urging the United States Court of Appeals For The Federal Circuit to overturn the District Court’s decision.

From The Legal Pulse:

Finger On The Pulse: From Our Blogroll And Beyond

  • James Beck breaks down (in great detail) Bruesewitz v. Wyeth, a case discussing federal preemption of childhood vaccine liability suits. (Drug and Device Law) (WLF Brief in case)
  • The debate over how to characterize the Roberts court continues.  Jonathan H. Adler of Volokh takes another shot.  (Volokh Conspiracy)
  • Josh Blackman and Timothy Sandefur offer their condolences to one little girl who discovered that free market isn’t always so free.  ( (PLF Liberty Blog)
  • Pacific Research Institute offers a new study linking civil justice reform with job growth and general economic health.  Sarah Palin offers her thoughts in the forward.  (PRI Study)
  • Josh Wright claims that the Federal Trade Commission is all up in Intel’s business. (Truth on the Market)
  • A cozy relationship between a plaintiffs’ attorney and a court-appointed expert?  Kenneth Anderson identifies some “New Twists in Chevron Ecuador Case.” (Volokh Conspiracy)

WLF’s 2010 Freedom and Justice Writing Competition

Washington Legal Foundation is pleased to announce its 2010 Freedom and Justice Writing Competition.  This year, law students will be asked to respond to the following prompt:

In Ashcroft v. Iqbal, 129 S. Ct. 1937  (2009) and Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007), the U.S. Supreme Court issued rulings which clarified its interpretation of the standards of particularity that plaintiffs must meet when crafting civil litigation complaints. Federal legislation, such as The Notice Pleading Restoration Act of 2009, S.1504, is being considered to overturn these decisions. Explain the Court’s rulings in the two cases; assess case analysis of lower court decisions to see what impact the rulings have had, and examine the effect the repeal of Iqbal and Twombly would have on the civil litigation environment.

The winning student will have his paper published in WLF Legal Backgrounder format and widely distributed to federal and state judges; electronic and print media reporters; state attorneys general; attorneys practicing in the respective field, both in private and corporate practice, as well as influential academics.

For more information on this year’s competition, click here.

To see last year’s winning paper by Saurabh Vishnubhakat, a third year law student at Franklin Pierce Law Center, click here.