Most critics of Obama's new order instructing Homeland Security to not enforce illegal immigration laws on illegal immigrant youths and instead grant them work permits argue the order violates the constitutional powers of the executive branch. Further, in March 2011 Obama himself stated he did not have the authority to issues such an order.
Proponents of the order say that the president is just using prosecutorial discretion.
From Kris Kobach's editorial in the NY Post:
The White House claims that it’s telling Immigration and Customs Enforcement agents to exercise “prosecutorial discretion” in not removing illegal aliens. But there is no such discretion.
In 1996, Congress inserted several interlocking provisions into the law that require deportation when Executive Branch officials become aware of illegal aliens.
Congress enacted these provisions explicitly to force the executive branch to place into removal proceedings virtually every illegal alien encountered by federal immigration agents. The exceptions allowed by the 1996 act are very narrow, to be applied only in extraordinary circumstances (such as aliens seeking political asylum).
In other words, the “prosecutorial discretion” that Obama claims he is ordering ICE agents to exercise no longer exists, because Congress eliminated it in 1996.Now that the Supreme Court of the United States has struck down significant portions of Arizona's illegal immigration law, which was designed to help the federal government enforce laws already on the books, the question remains, if and when the Supreme Court will require the president to uphold federal law?