Not two weeks after the President announced his executive action on immigration, 17 states, including Alabama, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Mississippi, Montana, Nebraska, North Carolina, South Carolina, South Dakota, Texas, Utah, West Virginia and Wisconsin, led by Texas Attorney General Greg Abbott, are challenging the executive action under the U.S. Constitution’s Take Care Clause (Section 3 of Article 2). The Clause provides, in part, “[the President] shall take care that the laws be faithfully executed.”   The suit asserts the President has gone beyond his powers by effectively creating new law and condemns the Department of Homeland Security (DHS) for not eliciting public comment, which is a standard procedure, before issuing its directive.

At the core of the controversy are two programs for undocumented immigrants – Deferred Action for Childhood Arrivals (“DACA”) and Deferred Action for Parental Accountability (“DAPA”).  DACA allows young people brought to the U.S. as children to live and work in the U.S. without fear of being deported while deferment is in effect.  DAPA does the same for parents whose children are U.S. citizens or permanent residents.  DACA and DAPA are estimated to affect more than four million people.

The U.S. does not have the resources to deport  the nearly 11 million people believed to be in the country unlawfully. The executive plan allows DHS to exercise discretion to prioritize who should be removed based on three priority categories of immigrants: (1) those who pose a threat to national and border security, (2) those with several misdemeanor convictions, and with serious visa status violations, who entered the U.S. unlawfully and cannot establish continuous presence in the country since January 1, 2014, and (3) those who were ordered removed on or after January 1, 2014.

The Office of Legal Counsel (“OLC”), which provides authoritative legal advice to the President and the Executive Branch agencies, concluded that this prioritization does not amount to law making and, therefore, does not represent an overreach since the effect is a flexible system for an exercise of discretion rather than a rigid policy.  In addition, prioritization is consistent with Congress’ 2014 directive to “prioritize the identification and removal of aliens convicted of a crime by the severity of that crime.”

In regard to DAPA, OLC notes deferred action is not new and has been used, for example, in 1997, to grant deferred action status to applicants applying for permanent residence under the Violence Against Women Act (“VAWA”) while they wait for a visa.  Similarly, in 2000 deferred action became available to victims of human trafficking, and certain other crimes, and their family.  In 2005, Hurricane Katrina triggered deferred action covering foreign students who were unable to attend schools and satisfy the student visa requirements.

OLC emphasizes that deferred action is a temporary, discretionary, revocable relief, not a grant of the right to remain in the U.S.

Further, 135 immigration scholars supported the President’s executive action on DACA and DAPA, saying these are legal exercises of prosecutorial discretion.