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SCOTUS Endorses Executive Discretion

- June 26, 2012

Just a quick addendum to my post trying to disconnect the president’s recent administrative directive regarding immigration from broader and more dubious assertions of executive unlateralism. The Court’s decision on the Arizona immigration law SB 1070 upheld the notion that federal authorities may and even must make discretionary decisions about who, within the broad class of potentially deportable aliens, should actually be deported.

In the majority opinion, Justice Anthony Kennedy noted that:

“Congress has specified which aliens may [emph. added] be removed from the United States and the procedures for doing so…  A principal feature of the removal system is the broad discretion exercised by immigration officials. Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all…. Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices thatbear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission.”