- The Washington Times
Monday, June 25, 2012

The good news for President Obama out of Monday’s Supreme Court immigration ruling is that the justices all seemed to agree that he has broad discretion over whom he chooses to deport.

The bad news for him is that he is about to face extreme pressure to grant a blanket exemption to most illegal immigrants, particularly those who now will be found by local police in Arizona.

While the justices ruled 5-3 to strike down most of Arizona’s law, all eight gave police tentative approval to check the immigration status of those they have reasonable suspicion are in the country illegally, and to report those immigrants to federal authorities.

But their ruling also made clear that they believe the president has broad authority to decide who gets deported.

“The pressure’s on him,” said Alfonso Aguilar, a conservative pushing for legalization.

He said Mr. Obama has been slow to act. “If he really has that discretion, he could stop those deportations. So why doesn’t he do this?”

The administration is already taking small steps in that direction.

Just hours after Monday’s ruling, the administration canceled existing agreements with seven sheriff’s or police departments in Arizona that had been allowed to enforce immigration law.

Officials also said they likely would end up declining most of the calls they get alerting them to illegal immigrants who have been stopped by state or local police.

“We will not be issuing detainers on individuals unless they clearly meet our defined priorities,” an administration official told reporters in a briefing conducted on the condition that none of the participants be named.

Later, the administration released a memo from top U.S. Immigration and Customs Enforcement officials to ICE staff in Arizona repeating the guidance.

Monday’s memo about limiting deportations was aimed specifically at Arizona, which raises questions about what will happen in other states, such as South Carolina and Alabama, that have passed similar laws granting local police power to check immigration status.

Mr. Obama over the past two years has taken steps to limit the exposure of most illegal immigrants to deportation, saying he wanted to focus enforcement on immigrants with felony records or those who have repeatedly violated immigration laws.

Last year, ICE Director John Morton issued guidance telling agents to focus on those priorities. Two weeks ago, Mr. Obama made an even bolder move, announcing that he would categorically halt deportations for illegal immigrants younger than 30 who were brought to the U.S. as children and have graduated from high school or earned an equivalent degree.

Some congressional Republicans challenged the move as an abuse of Mr. Obama’s authority, but in three of four opinions on the Arizona case yesterday, justices seemed inclined to give the president wide latitude.

Writing for the majority, Justice Anthony M. Kennedy specifically backed last year’s Morton memo as a key part of the federal system.

“The federal statutory structure instructs when it is appropriate to arrest an alien during the removal process. For example, the attorney general can exercise discretion to issue a warrant for an alien’s arrest and detention ‘pending a decision on whether the alien is to be removed from the United States,’” Justice Kennedy wrote.

Even in dissent, Justice Antonin Scalia seemed to accept Mr. Obama’s wide discretion, though he took the unusual step of specifically criticizing Mr. Obama’s categorical exemption two weeks ago for younger illegal immigrants.

“Thousands of Arizona’s estimated 400,000 illegal immigrants — including not just children but men and women under 30 — are now assured immunity from enforcement, and will be able to compete openly with Arizona citizens for employment,” Justice Scalia said.

That may not be enough for some advocates, who said they want to see an even broader exemption for older illegal immigrants.

At a panel discussion at the National Association of Latino Elected and Appointed Officials’ annual conference last week, the White House’s senior immigration policy adviser, Felicia Escobar, was peppered with questions about the need for a better policy to halt deportations.

Advocates said too many immigrants without criminal records are being deported under the administration’s priorities.

From the right, Mr. Aguilar, executive director of the Washington-based Latino Partnership for Conservative Principles, said the court’s decisions validate what Mr. Obama did earlier this month — but also open the door for him to do even more on a unilateral basis.

“If the president really believes in legalization, he probably has the authority on deportation,” Mr. Aguilar said. “He could actually issue an order basically saying, on his discretion, those who have no criminal record will not be deported — period.”

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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