Immigration Law

Obama can use pardon powers to stop deportations, law prof says in op-ed

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Supporters of President Obama’s policies on immigration and deportation gathered at the U.S. Supreme Court during oral arguments in April. Rena Schild /

President Barack Obama could use his pardon power to partly implement his deferred deportation program, according to a law professor’s op-ed.

Writing in the New York Times, Benjamin Cardozo School of Law professor Peter Markowitz says the president’s pardon power extends to “all offenses against the United States,” which could be interpreted to cover pardons for more than just criminal offenses.

The U.S. Supreme Court split 4-4 in June in a challenge to Obama’s power to implement a deferred deportation program through executive action. Obama’s program had offered deportation deferrals to immigrants who have lived here since at least January 2010, have no serious criminal record, and have children who are U.S. citizens or legal permanent residents. The split left in place an injunction blocking the initiative.

Pardoning the immigrants avoids debate over separation of powers issues, and avoids the “enormous administrative undertaking” that would have been required to implement the deferred deportation initiative, Markowitz says. It could not, however, deliver work permits to the immigrants.

“President Obama has plenty of time left to issue such a pardon,” Markowitz writes. “There is solid historical and legal precedent for him to do so. And although it would probably bring about legal challenges, opponents could not use the legal system to simply run out the clock, as they have with his deferred deportation program. A deferred deportation program could be undone by a President Trump. Unconditional pardons, in contrast, are irrevocable.”

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