Keep Dreaming: Deferred Action and the Limits of Executive Power

The Obama administration recently announced a policy whereby it would grant deferred action to undocumented immigrants who arrived in the United States as children and who meet additional criteria. In response, Arizona Governor Jan Brewer issued an executive order instructing state agencies to deny driver’s licenses and other public benefits to individuals granted deferred action under the new policy. Both actions drew significant criticism and raised important questions as to the limits of executive power vis-à-vis the rights of undocumented immigrants. Despite critics’ concerns, however, the actions of both executives are likely to have little lasting effect in the absence of further legislative action. In order for an executive to grant substantive benefits to a class of persons that a future administration cannot revoke, the legislative branch must first define and confer those benefits. Conversely, an executive cannot abridge a class of individuals’ rights that the legislative branch has clearly defined and granted. With respect to undocumented immigrants who arrived in the United States as children, then, only the legislative branch can grant lasting force to the executives’ actions.