The debate over whether U.S. deportations should be limited to dangerous criminals has returned to the forefront as administrations change enforcement priorities. The question raises legal, practical, and policy concerns about public safety, labor needs, and the proper role of the executive and legislative branches.
Mayorkas Guidance and Enforcement Priorities
Under the prior administration, Homeland Security Secretary Alejandro N. Mayorkas issued a memorandum instructing immigration officers to use discretion in interior enforcement. Mayorkas wrote that the fact an immigrant is technically deportable "should not alone be the basis of an enforcement action against them," and that officers should focus on individuals who "pose a threat to national security, public safety, and border security" while weighing mitigating factors.
The Constitutional Argument and Historical Context
"The president must 'take Care that the Laws be faithfully executed.'"
Supreme Court Justice Samuel Alito, in a dissent, argued that a president cannot refuse to follow statutory mandates implicated by the Mayorkas guidance. He warned that unilateral executive suspension of enforcement resembles prerogatives claimed by English monarchs before the 1688 Glorious Revolution — notably the ability to suspend statutes — a practice rejected by the English Bill of Rights and influential to the framers of the U.S. Constitution.
"Home Free Magnet" and Enforcement Effects
The author warns that limiting interior enforcement to convicted criminals creates a "home free magnet": a signal that migrants who reach the U.S. interior will generally be safe from removal unless later convicted of a serious offense. That prospect, the article argues, can incentivize irregular migration.
According to the original reporting cited in the piece, estimates of the undocumented population rose to a record high of about 14 million after two years of growth following relaxed interior enforcement. By contrast, proponents of aggressive enforcement point to data that roughly 1.6 million undocumented immigrants departed the United States voluntarily during the first 200 days of a more assertive enforcement posture under then-border official Tom Homan.
Labor Needs and Legalization Options
The United States does need foreign workers to fill labor shortages, but the article notes that illegal immigration is an unreliable mechanism to meet those needs. Immigrants who entered unlawfully may — by chance — have skills that match U.S. labor demand, but they did not come through a visa system designed to match qualifications to vacancies.
A legalization program could authorize work for many who are already here. Large-scale regularization would face political hurdles — the last major legalization was the Immigration Reform and Control Act of 1986 — but the piece suggests narrower approaches, such as legislation for DACA recipients or a limited, merit-based legalization using a points system similar to Canada or Australia. The author recommends designing any program to target workers who demonstrably meet U.S. employment needs and to limit participation to increase political feasibility.
Law, Policy, and Practical Remedies
The article emphasizes that while the president cannot unilaterally rewrite statutory deportation grounds, Congress has the power to change the law. If lawmakers intended to confine removals to dangerous criminals, the argument runs, they would have drafted statutes that way. Current federal immigration law contains multiple noncriminal grounds for removal, including unlawful presence, failure to maintain conditions of admission, document and registration violations, failure to register under the Alien Registration Act of 1940, and becoming a public charge within five years of entry.
The unspoken danger in allowing presidents to pick and choose enforcement priorities is institutional instability: each successive administration could effectively alter immigration policy without Congress. The author proposes the best remedy is legislative clarity or, at minimum, adherence by the executive to its constitutional duty to "take Care that the Laws be faithfully executed."
Conclusion
Restricting deportations strictly to dangerous criminals raises legitimate policy arguments about fairness, labor markets, and enforcement effectiveness. But any durable change to deportation scope should come from Congress, not executive discretion alone, to preserve the rule of law and provide stable, predictable policy.
About the Author: Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch immigration law expert for three years, later served as immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years, and previously wrote decisions for the Board of Immigration Appeals for 20 years.
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