The Department of Homeland Security's guidance to immigration agents for deporting illegal migrants "is a very clever tack by the Trump administration," famed civil-rights attorney Alan Dershowitz said Tuesday.
"They have created a far more legally defensible, if morally questionable, approach," the Harvard Law School professor emeritus told CNN's "Anderson Cooper 360."
"After all, the job of the executive is enforcement, making enforcement decisions," he explained. "Rule-making, on the other hand, is a quasi-legislative function.
"The courts do not defer as much to the executive when it makes rules like the rule it made a few weeks ago," he added, referring to President Donald Trump's Jan. 26 travel ban executive order.
"So, this is lawyers at work. They have told the administration: 'You want to achieve your goals? Achieve it through administrative actions.'
"They're going to be much harder to review," Dershowitz said. "They're going to be retail rather than wholesale.
"The people on the other side are going to have to come up with a legal strategy that is going to be much more creative and uphill in order to challenge this highly questionable order.
"It's legally on much more solid ground."
DHS officials told reporters Tuesday, although any immigrant in the country illegally could be deported, the agency would prioritize those deemed as posing a threat.
These include recent entrants, those convicted of a crime and people charged but not convicted. Some details of the guidelines were detailed in a draft memo seen Saturday.
Dershowitz told Cooper the new directives were "driving people underground.
"People are not going to pay their tickets. They're not going to come for other services. They're not going to tell the police if they see something.
"Obviously, they're going to have to live in a gray area for a long, long period of time. Obviously, we'll see the conflict now with sanctuary cities. That's going to bring this to a head."
He added most of the pushback will most likely come from local jurisdictions.
"There's a new check and balance on the president," Dershowitz said. "It's called states and cities.
"They are becoming very energized to bringing lawsuits the way Minnesota and Washington did — and other states are considering.
"Attorneys general of the states are going to become the new heroes of the movement to try to slow this down," he told Cooper. "We're in for an interesting ride in the courts and in politics."
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