Heather Fathali


On June 15, 2012, President Obama made an announcement that changed the lives of millions. Effective immediately, the Obama administration would implement a new program—what would come to be known as Deferred Action for Child-hood Arrivals (DACA)—offering eligible undocumented young people both a two-year respite from the haunting possibility of deportation as well as the eligibility to apply for employment authorization. While millions were elated by the President’s announcement, he also faced harsh criticism. Many claimed that his action exceeded federal statutory limits, exceeded his Executive powers, and usurped congressional authority. Still others, anxious to see comprehensive immigration reform implemented, were disappointed that he had not gone further. This Comment will address both criticisms before concluding that DACA is within the President’s power as a form of prosecutorial discretion and that the attendant grant of employment authorization is necessarily within the scope of that power. Part II of this Comment outlines the development of prosecutorial discretion in the law and reviews the scope of judicial review over agency decision-making. It then discusses the history and use of prosecutorial discretion in immigration law specifically and summarizes administrative guidance regarding prosecutorial discretion in the immigration context. Part III outlines the DREAM Act and DACA, explores the criticisms of DACA, and evaluates the statutory and constitutional limits of the Executive Branch authority. Part IV ad-dresses comprehensive immigration reform and discusses how DACA is likely to influence that reform. Part V briefly summarizes, reflects, and concludes.