Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Before we weigh
in with our final thoughts, we would first like to thank Jack Balkin for
generously making this forum available to us, to explore the implications of President
Obama’s latest and sweeping use of his executive authority to reform
immigration law. We also are indebted to the wonderful collection of scholars and
attorneys who contributed their thoughts, almost in real time, to a debate that
is sure to continue and that has potentially profound implications for law
enforcement and the administrative state. Encountering the number of different
ways “in” to our central question—whether the President acted within the
relevant legal authorities—has been fascinating and highly educational.
Though our own
central preoccupation has been with the separation of powers dynamics reflected
in this latest episode of presidential action, we also are mindful of the human
and family interests at stake and the considerable work that remains to be
done, by both of the political branches and the American people, to build a
just and effective system of immigration law and enforcement. Happy
Thanksgiving to all.
widespread agreement that the Executive Branch may exercise prosecutorial
discretion in individual cases, incorporating humanitarian factors and
efficiency concerns into its judgments about which cases to pursue. And there is
nearly universal agreement that the President may not decline to enforce the
law, or “rewrite” Congress’s laws, to put it in terms used by OLC. But the vast
space between these two poles is where the debate over the President’s
initiatives lies.Over the last several
days—both on this blog and around the nation—that debate has crystalized around
four central questions concerning the legality of the administrative relief
laid out by President Obama last Thursday.
(1) To be
lawful, must relief be closely tied to statutorily articulated congressional
(2) Is it
permissible for prosecutorial discretion to be exercised “categorically,” or
must it proceed on a “case-by-case” basis?
(3) Does the
fact that the President’s actions extend a benefit—work authorization—rather than
just withhold a sanction affect their legality?
(4) Is the
relief simply too big in scope to constitute a lawful exercise of prosecutorial
The first two
arguments have played a big role in nearly everyone’s analysis of the
President’s actions—including OLC’s—while the second two have been
peripheral.This is somewhat surprising,
because in the days and months leading up to the President’s announcement,
questions three and four dominated the debate; critics of what was to come seemed
most exercised about the sheer scale of any potential relief program, and about
the decision to authorize unlawfully present immigrants to work.
We do not yet
have a good account of why questions three and four have receded, though one
possibility is that the work authorization question quickly came to be seen as
a matter of straightforward statutory
delegation (for the reasons Marty Lederman echoes in his last post), while the
question of permissible scale came to seem utterly intractable.
We are not yet
sure that either of these conclusions is quite correct. On the scale question,
in particular, we think one strain of the debate that attempts to allay
concerns about size is incomplete. Just as we think that resource constraints
are not a necessary condition for the exercise of prosecutorial discretion, we
do not think their presence is a sufficient justification for a deferred action
program. Accordingly, we are not fully persuaded by the one theory of scope
that emerges from the OLC opinion and that Steve Legomsky and Marty Lederman have made more explicit.On that theory, if the President only has the
resources to remove up to 400,000 people per year, then deferring the
deportation of millions cannot amount to an abdication of his duty, because the
President will continue to consume all of the enforcement resources that
Congress has allocated. This response has the virtue of being elegant, but it also
proves too much. Short of granting
relief to nearly all 11 million unauthorized immigrants, the President will
always be able to use up the enforcement resources appropriated by Congress.
But because the resources it takes to deport a person almost certainly increase
as the pool of deportable persons shrinks, these resources will be consumed identifying
and deporting a smaller and smaller number of people.
For purposes of
this final post, however, we’d like to put aside questions of scope and work
authorization to focus on the two issues that fostered the most debate in this
Let’s assume OLC is correct that the new
Obama/DHS immigration initiative complies with all of the relevant immigration laws.Even so, was it unwise, or regrettable,
for the President to go down this road because the exercise of the sort of
enforcement discretion at issue in this case might set a dangerous precedent that
future executives could exploit?I
addressed this question briefly in Point 7 of my
commentators, however—include some who are quite sympathetic to the substance
of the President’s initiative—continue to be anxious about what the new
initiative portends for the future. Which is understandable:After all, who among us would be entirely comfortable with a common
practice in which an executive agency invokes "enforcement discretion" as a ground for declining to enforce statutes that
it (or the President) disfavors on policy grounds?
I thought it might therefore be worthwhile to examine
the question a bit more closely. I hope that what follows might, at least in part, allay such concerns about whether
the new immigration policy would establish a dangerous precedent.
It’s nothing new:But does that make it even worse?
In my earlier post I stressed a point that many
other supporters of the immigration initiative have also emphasized—namely, that
this can’t be a groundbreaking precedent because it’s nothing new under the
sun:Executive agencies establish
these sorts of broad, categorical enforcement priorities all the time.Moreover, in doing so, agencies often
assign “low priority” to enforcement of certain laws because they consider (or
the sitting President considers) those laws to be unwise, or immoral, or
trivial, or a waste of precious resources, or treading upon important constitutional
values (even if it is not actually unconstitutional).
To tick off only a few conspicuous
have in recent decades brought virtually no obscenity prosecutions (often
channeling many of their resources to child pornography cases instead).Few if any prosecutions are initiated
for marijuana possession—even, recently, in Colorado and Washington, where
state law does not pick up the slack.And the Civil Rights Division in recent Republican Administrations has
largely eschewed bringing disparate impact discrimination cases. Most analogous to the current example, perhaps, are the "desuetude" cases, in which executives rarely prosecute laws that have lost most of their popular support (even if there is not sufficient political wherewithal to repeal them). See, e.g., Poe v. Ullman, 367 U.S. 497, 502-03, 508 (plurality opinion) (1961) (Connecticut practice respecting ban on contraceptive use); Lawrence v. Texas, 539 U.S. 558, 573 (2003) (describing "pattern of nonenforcement" of sodomy laws "with respect to consenting adults acting
in private"). Or cases in which everyone knows that enforcement is rare, bordering on nonexistent, in particular applications, which establishes a new norm of behavior by the regulated actors--think, for example, of police not enforcing a 55-mile-an-hour speed limit for persons driving under 65 or so.
In a recent
post, Mike Dorf acknowledges that this sort of selective, categorical disfavoring
of enforcement of particular laws is a common practice—but in his view that’s
all the more reason to be concerned about adding the new immigration removal
policy to the list, because the common practice is something to be bemoaned, not emulated:“[T]here is a
legitimate question,” he writes, “of whether this policy and many others pursued in the past by presidents of both parties
push the notion of prosecutorial discretion too far.” In other words, perhaps this new immigration policy will only exacerbate a serious preexisting problem. In particular, Mike worries that a decision “not to enforce a law at all in the face of a
contrary congressional judgment . . . would be a serious threat to
separation of powers." Accordingly, Mike writes that "to the
extent that Obama's immigration policy ends up being used politically as a
precedent for truly dangerous executive overreach by a future (Republican or
Democratic) president, I worry that my friends who signed a scholars' letter
that makes the same sorts of measured arguments found in the OLC memo may live
to regret doing so.” In his very thoughtful contribution to this symposium, my former OLC colleague Zach Price echoes Dorf's concern: “[I]n
the long run,” Zach writes, “Democrats may have more to fear than Republicans
from erosion of norms against policy-based non-enforcement. Amid our deeply polarized politics,
Democrats are the party more committed in principle to the value of regulation
in improving social welfare and restraining undue private power. Non-enforcement is a fundamentally
deregulatory power: it is a power
to strip force from statutory requirements though executive inaction. Republican Presidents have used it as
such in the past. Democrats should
worry about how they might use it in the future.”
And in a comment to Mike Dorf’s post, Mike's colleague
Steve Shiffrin offers some examples of the sort of thing he, Mike and Zach are
worried about:What if President Reagan
had gone ahead with his suggestion of not prosecuting those who do not pay
their capital gains taxes?Or what
if the next Republican administration opts not to prosecute Affordable Care Act
objectors who refuse to maintain insurance or
pay the tax the Court upheld in NFIB
v. Sebelius?Steve asks:“Would the principles of the Obama
policy permit a Republican President to engage in this form of prosecutorial
There are, I think, several reasons why perhaps Mike
and Zach and Steve—and the rest of us—should not be so concerned that the new immigration policy will establish such
a worrisome precedent.
Most of the OLC opinion is the model of careful research,
sound analysis, and clear expression.And then you get to the third section, in which they declare that
deferred action could not legally be granted to a class of individuals
consisting of the parents of DACA recipients.
I have to say I found this section of the opinion simply
extraordinary.Their conclusion rests
entirely on a legal premise that they invent out of thin air and make no
serious attempt to – and cannot – support.
At first glance, it is easy to understand why critics of the
President’s new administrative relief program do not see it as merely an
exercise of prosecutorial discretion. The administration has done far more than
merely “prioritize” the deportation of some undocumented immigrants over others.
The new program provides documentation
to those who are de-prioritized – something akin to a license that lasts for
three years, during which line-level enforcement agents cannot deport people who have the license absent unusual
circumstances and high-level supervisory approval. In this respect, the new program
fundamentally differs from prosecutorial discretion policies that might, for example,
de-prioritize criminal prosecutions of people arrested with small quantities of
marijuana. It’s more like a program to give people licenses to possess marijuana
for three years, notwithstanding Congress’s decision to ban its possession.
Could the President create such a program? I’m not sure, but
whether or not he could might turn in part on whether more traditional measures
to prioritize resources had failed. What if DEA agents and U.S. attorneys
defied an Attorney General’s directive on marijuana, and continued to arrest
and prosecute low-level possession offenders even after being told not to
prioritize such cases? Would the administration be justified in creating a
marijuana license scheme under those circumstances, where there was no other way
to force law enforcement agents to focus on the administration’s priorities?
As it turns out, that hypothetical is highly relevant here. Although
you will not find it discussed either in the administration’s public statements
or in its OLC memo, the new administrative relief program arises out of a
historical context of defiance – some would say insurrection – by ICE
enforcement agents and attorneys who essentially refused to implement prior
directives on prosecutorial priorities.
There is much to cheer in OLC’s careful opinion, but nonetheless cause for concern about the precedent the administration has set.
Let me say at the outset that as a policy matter I support the President’s action and find Congress’s inability to provide immigration relief incomprehensible. I view this issue, however, as one instance of a recurrent separation-of-powers problem that arises across many areas of regulation: What authority do Presidents have not to enforce laws for policy reasons?
From that perspective, the most important thing the OLC opinion does is to cabin this precedent to the immigration context—and the most significant risk it poses is that this effort will not prove successful.
Under our constitutional system of separation of powers,
does the President have the authority to defer the deportation of the
undocumented parents of children who are lawfully present in the United States,
to permit these persons to apply for work authorization and also to expand the
Deferred Action for Childhood Arrivals first announced in 2012?Or is the President violating the
Constitution by refusing to execute the immigration laws?
Here are three reactions to these questions.
First, these two
questions are not opposite sides of the same coin.Whatever answer you give to the first question,
the answer to the second one is a resounding NO.The allegation that the President is
violating the Constitution rests on the claim that he is violating his duty to
take care that the laws be faithfully executed.That depends crucially on what it means to “faithfully execute” a law.In 1823, Attorney General Wirt wrote that the
duty requires that the law be executed “not with perfect correctness of
judgment, but honestly.”That
description makes the best sense of the language of the Constitution; it reflects
the wisdom of the Founders who were practical people fully aware that all
humans, including Presidents, are fallible; and it appreciates the background
understandings of the time.
The 33 page legal opinion
issued by the Department of Justice’s Office of Legal Counsel analyzes options
available to the President in executing the existing immigration laws.It is a careful and thorough analysis.I find it a convincing defense of the
President’s actions, but even if you don’t agree, this only establishes that
people can have honest disagreements over how to interpret a statute.(For the views of one very distinguished administrative
law professor who disagrees with my assessment of the OLC opinion, see Peter
in the NYT.)That is enough to secure a
negative answer to the second question posed above.
Nonetheless, the President’s critics – and especially the
House Republican majority – want to wage a major battle with the President over
the extent of his executive authorities, his ability to “run around Congress,”
to behave as an emperor or king, or to “shred the Constitution.”My
second response is that the OLC opinion demonstrates that the President’s
immigration actions are going to be a very poor field on which to wage that
battle.The question of the legality
of granting deferred action and making application for work authorization
available to 4.4 million undocumented is, as a legal matter, a garden variety
administrative law question of the extent of the discretion that has been
delegated, originally to the Department of Justice and later by transfer of
authority and additional legislation to the Department of Homeland
Security.A court might find that DHS’s deferred action
directive is outside the scope of its statutory authority.I doubt it, but let’s assume that is
possible.If it does, then the action
will be consigned to the pile of agency actions that have been overturned by
courts over the years as exceeding their authorities under the relevant statutes.To my knowledge, in none of these prior
decisions has a court ever even contemplated the question of a constitutional
violation by the President.A court
would not go there this time around, either.
opinion on new enforcement priorities for the Department of Homeland Security probably
will serve to establish the terrain for battles over the legitimacy of
prosecutorial discretion for a long time to come.And there will be other battles. You can bet
that Republican Presidents someday will try to invoke President Obama’s actions
to undercut other regulatory programs they don’t like.
opinion actually raises significant questions about the Obama Administration’s own
signature exercise of expansive prosecutorial discretion, the 2012 DACA program
that shields childhood arrivals from deportation. And it is disingenuous about key elements of
its reasoning and its analysis of the new programs in operation.OLC’s decision factors are fine, but they
should be – and should have been – applied with more rigor, lest prosecutorial
discretion become a vehicle to “rewrite the laws.” (This in-the-weeds slipperiness is why I am
not at all confident that the precedent can be confined in the way, for
example, that Marty Lederman opines.)
On November 20, 2014, President Obama announced
his long-awaited plan for executive action on immigration reform. As someone
immigrants who face deportation under the current system, I appreciated the
President’s observations regarding the “hypocrisy” and “cruelty” of our broken
immigration laws. The Supreme Court has aptly equated deportation to “the loss
of all that makes life worth living,” yet we have deported millions of
people (well over 2
million during the Obama administration alone) without providing them with
a right to counsel or a meaningful opportunity to present the facts of their
case to a judge. The President’s plan for executive action does not solve these
problems, but it does include an effort to provide some immigrants with a temporary
reprieve from deportation, to prevent family separation while Congress
debates longer-term approaches to comprehensive immigration reform.
Despite the political controversy over the President’s
actions, the legal basis for President Obama’s plan is well established. As
explained in a memorandum from the Office
of Legal Counsel, Congress has delegated broad authority over enforcement
priorities to the Executive Branch through the Immigration and Nationality Act.
This authority encompasses acts of prosecutorial
discretion, which the Supreme Court has recognized as recently as in 2012
to be a “principal
feature of the immigration system.” A longstanding application of such
prosecutorial discretion in the immigration context is “deferred action,” which
provides a temporary reprieve from deportation and the ability to apply for
work authorization, subject to revocation.
Deferred action and similar forms of prosecutorial discretion have long
been explicitly referenced in federal statutes like the Immigration and
Nationality Act, the USA PATRIOT ACT, and the REAL ID Act; in federal regulations;
and in decades-old policy memoranda. Indeed, every
president as far back as President Eisenhower has used some form of
prosecutorial discretion to protect groups of individuals from deportation or
exclusion from the country.
In light of the Executive Branch’s broad authority to engage
in prosecutorial discretion, the scope of President Obama’s plan to expand
deferred action is rather modest. As several commentators have noted, President
Obama’s plan is not so different from President Georgie H. W. Bush’s Family
Fairness program in 1990—executive action that, at the time, prevented the
deportations of over
40 percent of the undocumented population. President Obama’s new plan
similarly attempts to reach approximately 4-5 million of the 11-12 million
undocumented immigrants living in this country.
Nonetheless, critics of President Obama’s plan have argued
that he has engaged in an unconstitutional “power grab.” While most immigration
law scholars maintain that such assertions are unfounded, a
few have argued that the President may have arguably violated his
constitutional duty to “faithfully execute” the laws. Such arguments are generally
premised on the idea that the President is “legalizing” immigrants contrary to
the dictates of Congress. However, the
President has not announced a policy of legalization. The decision whether or
not to deport an individual—a penalty—is not the equivalent of a decision
whether or not to confer legal status such as permanent residency (either
through affirmative grant or waiver) or citizenship. The Supreme Court has explicitly
observed that nonenforcement decisions are a “special
province of the Executive Branch.” And this is for good reason, given the
potentially harsh, disproportionate, and counterproductive consequences of
enforcement in some cases and the limited resources that the President has been
given to administer the law in various contexts.
Indeed, in this respect, the memorandum from the Office of
Legal Counsel may have been too conservative in its estimation of the
President’s authority in the immigration context. The memorandum concluded that
the President could not use his authority to extend deferred action to the
parents of previous deferred action recipients. However, the family unity
concerns expressed in the Immigration and Nationality Act are not exclusively
limited to those whose family members already have lawful status in the United
States. The Immigration and Nationality Act also includes humanitarian-based
waivers and other forms of discretion that permit considerations of family ties
without regard as to whether those family members are U.S. citizens or lawful
permanent residents. Family unity is a value that exists separate and apart
from status, and its promotion through broad deferred action is consistent with
the legal authority delegated to the President.
The rest of the debate appears to be a question of policy
disagreements, rather than legal authority. These disagreements do not all go
in one direction. For example, the President emphasized his efforts to use his
executive authority to focus increased enforcement at the border and against
individuals who fall under an amorphous “criminal” label—policies that will no
doubt lead to many of the same problems that we have previously seen involving family separation,
without due process, and abuses
at the border. I do not agree with these aspects of the President’s planned
use of executive authority. When we divide up immigrant communities into the
“deserving” and “undeserving,” everyone suffers. This is not only because the
“underserving” share so many characteristics of the “deserving”—including
having family ties and significant contributions to our country—this is also
because the very existence of an “undeserving” category serves as a
justification for the programs of mass deportation and detention that have
proven to be so deeply problematic for our country as a whole. The only way to
ensure a fair and just system is to provide everyone with a meaningful
opportunity to be heard on the facts of his or her case—without exception.
That being said, these are issues for public debate. The
public would be far better served by those who disagree with President Obama’s
policies if the critics addressed these concerns on their own merits, rather
than cloaking their disagreements in a strained legal challenge to the
President’s authority to exercise his prosecutorial discretion.
Alina Das is Associate Professor of Clinical Law, NYU Law School. You can reach her by e-mail at DasA at exchange.law.nyu.edu
Along with others I believe the new immigration initiative is a
constitutional exercise of DHS’s broad discretion over enforcement of the
immigration statutes. The Office of
Legal Counsel opinion provides an impressive and careful assessment of the
initiative’s legality. OLC deserves credit
both for making the opinion publicly available and undertaking to identify the
metes and bounds of constitutional exercises of enforcement discretion.
OLC identifies four principles as delimiting the permissible
scope of enforcement discretion, two of which strike me as meriting special
emphasis. The first is the requirement
that enforcement decisions must comport with statutory policies and cannot
represent a surreptitious attempt by the executive branch to rewrite the
statutes at issue. The second—the
constitutional bona fides of which I question—is that “a general policy of
non-enforcement that forecloses case-by-case discretion poses special risks
that the agency has exceeded the bounds of its enforcement discretion.” (OLC Op. at 7).
A requirement that enforcement decisions must constitute
good faith efforts to implement governing statutes (assuming those statutes are
constitutional) strikes me as a no brainer.
This is the minimum constitutional demand imposed by the Take Care
Clause’s requirement of faithful execution of the laws. Whether such good faith efforts preclude
invocation of presidential priorities when these priorities are compatible with
underlying statutes is a harder question, as Adam Cox and Cristina Rodriguez suggest. More
generally, the principle that enforcement discretion must comport with
statutory policy is not what’s in dispute.
Instead, it’s OLC’s application of this requirement — on the one hand,
to uphold DHS’s proposal to grant deferred action status to parents of U.S.
citizens or legal permanent residents, despite estimates that this may shield
up to four million immigrants from deportation; and on the other, to conclude
that it would be impermissible to grant deferred action status to parents of beneficiaries
of the 2012 DACA program.
Still, the initiative’s statutory underpinnings are a
critical feature of OLC’s analysis, and to my mind an important and appropriate
one. As Marty Lederman notes, rather than asserting inherent presidential power, OLC’s
assessed DHS’s proposed actions entirely through the prism of delegated
statutory authority. That statutory
focus will be a central factor in determining the opinion’s impact in future
OLC’s suggestion that exercises of enforcement discretion
must preserve an opportunity for case-by-case determinations is much harder to
justify. OLC invokes lower court
decisions in support of such a case-by-case requirement, but these decisions
address a different issue, namely whether an agency’s adoption of a general enforcement
policy should be deemed discretionary action that is presumptively exempt from
judicial review under the Administrative Procedure Act. The two questions are significantly distinct; it’s
well-established that an agency decision can be judicially reviewable yet
nonetheless constitute a legitimate exercise of discretion. Moreover, at most these decisions identify
case-by-case determinations as enforcement discretion’s paradigmatic form. But that is a far cry from concluding that a
purely general policy alone cannot qualify.
OLC also suggests that a case-by-case outlet is important to
guard against the executive branch trumping statutory policy, however the basis
for this connection isn’t obvious to me.
Nothing in the categorical nature of an enforcement policy entails that
it will be more likely used to defeat statutory policies rather than enforce
them. Insofar as categorical policies
make enforcement choices more transparent and better constrain low-level
discretion, they actually represent an important mechanism for enforcing adherence to governing law. To be sure, the Supreme Court has indicated
that exercises of discretion in the immigration context may statutorily require
“some level of individualized determination.”
(Reno v. Flores, 507 U.S. 292,
313 (1993)). That would support OLC’s
emphasis on opportunities for individualized determinations under the
initiative, but doesn’t justify a broader principle that all constitutional
exercises of prosecutorial discretion must have a case-by-case element.
Most importantly, an insistence on preserving case-by-case assessment
ignores the constitutional values served by categorical enforcement policies. Meaningful supervision over case-by-case removal
decisions is hard. Precluding
prospective and categorical articulation of immigration enforcement priorities
is thus tantamount to insisting that nonenforcement decisions must be made by
lower-level officials. Such a requirement
stands fundamentally at odds with our constitutional structure, which I have argued embodies a duty to supervise exercises of delegated
power. On this view, by openly stating a
generally applicable policy and instituting an administrative scheme and
guidance to implement that policy, President Obama and Secretary Johnson were
fulfilling their constitutional duty. This
positive constitutional case for categorical enforcement oversight deserves
greater weight in assessing the initiative’s constitutionality.
Gillian Metzger is Stanley H. Fuld Professor of Law at Columbia Law School. You can reach her by e-mail at gillian.metzger at law.columbia.edu
Illegal Immigration v. Islamic State: I didn't have space in my Los Angeles Times essay to reflect on a second salient difference between Obama's recent unilateral engagements on these two different fronts.
This contrast reveals a politically-inspired manipulation of the Office of Legal Counsel.
The OLC immediately published a careful 33 page opinion in support of the president's executive order on immigrants; but it has entirely failed to explain why he can defy the ninety-day time limit imposed by the War Powers Resolution, and continue on-going "hostilities" against the Islamic State despite his failure to obtain the consent of Congress.
To be sure, the White House has asserted that the Congressional Resolutions obtained by President Bush in 2001 and 2002 can be stretched to cover Obama's current campaign. But these assertions are not to be confused with a serious opinion, like the one OLC just issued on immigration, which confronts the formidable counter-arguments against the president's bare assertion of war-making authority.
For example, in the aftermath of 9/11, President Bush initially demanded authority “to
deter and preempt any future acts of terrorism or aggression against the United
States” (my emphasis). But Congress refused to grant Bush this carte blanche. It only authorized him to attack states and groups involved in the assault on the Twin Towers and the Pentagon -- requiring future presidents to return for a new authorization if they choose, as Obama has done, to open up a new front in the war on terror.
As I showed in a previous post on Balkinization, there is clear legislative history that Congress sought to deny the very authority that Obama has now claimed under the 2001 Resolution. At the very least. a serious OLC opinion would have to explain why this history does not bar the President from his latitudinarian interpretation of the 2001 text. In muzzling the OLC, the President is breaching a fundamental principle of the rule of law, requiring public accountability for his violation of the democracy-forcing mandate of the War Powers Resolution,
The central importance of this rule-of-law principle has been recognized by Obama's OLC itself. In a 2010 memorandum on best practice, David Barron, then the Acting Assistant Attorney General, explained that:
"in deciding whether an opinion is significant enough to merit publication, the Office considers such factors as the potential importance of the opinion to other agencies and officials in the Executive Branch, the likelihood that similar questions will arise in the future; the historical importance of the opinion, or the context in which it arose; and the continuing significance of the opinion to the Office's overall jurisprudence. In applying these factors, the Office operates from the presumption that it should make its opinions fully and promptly available to the public." [Memorandum, at p. 5]
To be sure, Barron's memo then goes on to say that "national security" might serve as a "countervailing" factor. [Id.] But this caveat did not prevent the Administration from publishing an edited version of Barron's OLC opinion on drone warfare to obtain his Senate confirmation as a judge on the First Circuit. It should not prevent the publication of a similar opinion supporting the legality of Obama's war on ISIS, when so much more is at stake.
Given the OLC's asserted "presumption" in favor of publication in cases like this, there is only one fair conclusion to draw from its continuing silence. If its opinion were issued, it would only serve to confirm the hostile reception that Obama's assertions have provoked from serious constitutionalists of all political persuasions -- creating another political hailstorm for the president as he continues to defy the commands of the War Powers Resolution.
To conclude: when the President has a strong legal case, as in his immigration order, he tells the OLC to proclaim it to the world; when he doesn't, he tells it to shut up. The best way for the legal community to respond to this maneuver is to apply a presumption of illegality whenever the president -- or any future president -- engages in such transparently political manipulations.
Obama is not the first president to play politics with the OLC. I trace the office's increasing politicization over the past decades in my Decline and Fall of the American Republic. But in voting for him twice, I had expected our law professor-president to bring the Office back to its origins as a serious guardian of legality within the executive branch. He has failed; and the best way to respond is with this rule: Whenever the Office of Legal Counsel violates its own presumption in favor of publication, Americans should answer by presuming the illegality of a seriously contested decision.
Abraham Lincoln's Emancipation Proclamation provides the foundational precedent for President Obama's executive order on immigrants in the country illegally.
Before Lincoln issued his pronouncement in September 1862, congressional majorities had expressly affirmed that the war effort only aimed “to preserve the Union” without “overthrowing … established institutions” in the rebel states. The proclamation was an act of executive unilateralism, and as Obama has done in his order, Lincoln limited its scope in recognition of this fact. As a result, both proclamations serve only to initiate, rather than preempt, further democratic debate and decision.
Lincoln did not try to free any blacks in the four slave states that remained loyal to the Union. Nor did he even liberate slaves in the Southern areas under federal control. Instead, the proclamation only affected those areas that remained in active rebellion on New Year's Day 1863.
Even where it applied, it did not commit the country to unconditional emancipation. Lincoln acted only in the name of “military necessity,” leaving it unclear whether Southern states could constitutionally reinstate slavery once the fighting came to an end. As the war wound down, many wanted to defer this issue for at least five years. But the proclamation prevented this evasion, forcing the question to the center of public attention.
Congress' first moment of truth came before the 1864 elections, when the 13th Amendment, which would authoritatively free the slaves, came to the floor. But in April 1864, the House rejected the measure. By voting no, Democrats sympathetic to the South deprived the initiative of the requisite two-thirds majority.
This constrained exercise of constitutional and statutory discretion will force both parties down Lincoln's path, requiring tough decisions they might otherwise evade.
The Democrats' decision made the emancipation amendment a central issue in the November elections — with their presidential candidate, Gen. George McClellan, supporting his party's congressional position throughout the fall campaign. The Democrats changed their tune only after their decisive defeat at the polls by Lincoln's Republicans. When the 13th Amendment returned for consideration during the lame duck session of Congress, enough Democrats changed their votes to give the initiative the two-thirds majority required to send it onward to the states.
The subsequent enactment of the amendment, however, did not conclude the debate that Lincoln had begun. In his proclamation, he promised to “recommend” that all “loyal” citizens “be compensated for all losses… including the loss of slaves.” This recommendation provoked a further round of argument that only ended in 1868 when the 14th Amendment rejected Lincoln's proposal, expressly denying all compensation to slaveholders for their newly emancipated freedmen.
Particulars in Obama's proclamation may well be changed by Americans over time. But like Lincoln's, its provisional and limited character will have a democracy-forcing effect — spurring officials and citizens to more actively engage in a constitutional dialogue.
Rather than refusing to follow the Constitution and “take care that the laws be faithfully executed,” the president emphasizes that he will continue deportations, using all the budgetary resources Congress has provided. But those appropriations cover the annual removal of only 400,000 of the 11.3 million immigrants in the country illegally. Given this fact, Obama's initiative has a constitutionally legitimate purpose: to prevent Homeland Security from wasting its scarce resources on breaking up innocent families when it could be targeting immigrants who deserve expeditious removal.
This constrained exercise of constitutional and statutory discretion will force both political parties down Lincoln's path, requiring tough decisions they might otherwise evade: Will the Republican candidates for president and Congress, like the Democrats in 1864, run their next campaign on a platform repudiating Obama's proclamation? If so, will the Democrats of 2016 defend it? If so, how will voters respond?
The democracy-forcing aspect of Obama's initiative distinguishes it from other recent exercises in executive unilateralism. The president's decision to begin an open-ended war against Islamic State, for example, represents the imperial presidency at its worst. It is neither conditional nor provisional.
To the contrary, Obama is ignoring the War Power Act's explicit requirement that presidents gain congressional assent to their initiation of hostilities within 60 days. Rather than provoking debate, his assertion of power allows Congress to defer a considered decision on the war to the indefinite future. Serious constitutionalists should oppose such unilateralist assertions as a breach of fundamental principle.
But they should not confuse the issue by denouncing the president as imperial when he is engaging in democracy-enhancing actions fully consistent with his obligation to “take care that the laws be faithfully executed.”
like me—a former prosecutor who now teaches and writes about criminal
procedure—there is a Through the Looking Glass quality to much of the furor
over President Obama’s new immigration enforcement policies.For several decades concerns have been raised
that American prosecutors exercise lawless authority, in large part because of
their nearly unbridled discretion over the filing of criminal charges.Prosecutors have resisted, fiercely and
successfully, virtually every effort to limit the range of their discretion or
to require them to explain, to defend, or to justify their charging
decisions.Their resistance has been
successful in part because the courts have treated enforcement decisions not
just as unamenable to judicial review but as a matter firmly committed under
our scheme of government to the Executive Branch.It is this extreme deference by the courts to
prosecutorial discretion—deference that strikes many scholars of criminal
procedure as excessive—that has served as the primary template for broad judicial
deference to other forms of executive enforcement discretion, including
decisions about deportation.
standpoint, there are two things about the immigration enforcement policies
that are profoundly unremarkable.The first
is that the Executive Branch is prioritizing which undocumented immigrants it
will seek to deport.It has to do that,
since there are about 11 million undocumented immigrants in the country and
Congress has provided funding that will allow somewhere around only 400,000
removal actions each year.The second
unremarkable thing is the particular enforcement priorities the Administration
has chosen, none of which seem to have drawn any significant criticism.Those priorities do not include, needless to
say, immigrants without criminal records who are the parents of U.S. citizens
or lawful permanent residents and who have lived in this country continuously since
at least 2009.
drawn criticism, of course, is the announcement of a policy not to deport most people in that group, at least not for
the time being, coupled with a decision to give them work permits.I don’t feel particularly qualified to opine
about the legality of the work permits, except to note—as has the
Administration—that there is a longstanding practice of giving work permits to
immigrants granted “deferred action,” a practice to which Congress and the
courts seem, at a minimum, to have acquiesced.But to someone who thinks more about prosecutors than about immigration
agents, it’s weird to see to see the President criticized as “lawless” for
announcing a formal policy rather than continuing to forego deportation on a
entirely ad hoc, decentralized, case-by-case basis, as everyone seems to agree
he could have done.It’s in large part
the ad hoc, decentralized nature of prosecutorial discretion that has seemed to
many people, for quite a long time, to allow prosecutorial power to be
exercised so arbitrarily.
the talk of lawlessness in connection with the new immigration policies especially
bizarre is that (a) the President took the unusual step of releasing an
assessment of those policies by the Office of Legal Counsel, (b) OLC’s
assessment took seriously not just the judicially enforceable limits on
executive discretion, which are minimal, but the nonjusticiable implications of
the President’s constitutional obligation to “take Care that the Laws be
faithfully executed,” and (c) OLC wound up interpreting that language to impose
significant restrictions on enforcement discretion—so significant that they
ruled out some of what the President had wanted to do, and what it seems to me
he could very plausibly have claimed authority to do.Charging guidelines in criminal procedure are
rarely if ever announced and defended in so public a manner, with such
significant self-imposed limits.Maybe
they shouldn’t be.But when compared
with enforcement discretion in criminal procedure, the new immigration policies
hardly look lawless.
entirely sensible to think not just about the substance of the new immigration
enforcement policies but also about the precedent set by the way in which the
President has put them into place.The
President’s critics are right about that.They’re wrong, though, to suggest that the precedent created here will
allow future Administrations to decline to enforce any laws they do not
like.The President has asserted the
authority only to exercise his immigration enforcement discretion—a kind and an
amount of discretion that Congress has left him no choice but to exercise in
one way or another—through nationwide policies, publicly announced and publicly
defended, rather than through ad hoc decisions made around the country behind
closed doors.Moreover, OLC’s memorandum
concludes that the new deferred prosecution guidelines are permissible only because
(a) they rely on factors peculiarly within the expertise of those charged with
enforcing the immigration laws, (b) they are consonant with the policies and
commitments established by Congress, (c) they do not abdicate or attempt to
rewrite the President’s statutory responsibilities, and (d) they leave open the
possibility of individualized, case-by-case decisions, if particular immigrants
within the general class protected by the new policy nonetheless merit deportation.
principles would allow the step ruled out by OLC—deferred action for parents of
DACA beneficiaries.Regardless, though,
the precedent they create for future Presidents is circumscribed.
David Alan Sklansky is
Professor of Law at Stanford Law School and can be reached at firstname.lastname@example.org.
Much of the initial
reaction to the President’s newly-announced administrative relief program will
likely focus on the decision not to
extend relief to the parents of individuals who have obtained relief under the
Deferred Action for Childhood Arrivals (DACA) program, even though it does
extend relief to parents of children who are U.S. citizens or lawful permanent
residents. At first blush the decision appears quite curious. After all, the
President expanded DACA as part of the new program, and he offered strong
support for the Dreamers in his remarks, referring to “the courage of students
who, except for the circumstances of their birth, are as American as Malia or
Sasha.” But apparently he did not think the Dreamers are quite American enough
to save their parents from deportation.
While the President’s
speech offered no explanation for that apparent anomaly, the Office of Legal
Counsel’s memo defending the legality of the President’s program concludes that
he would have lacked authority to provide relief to the parents of DACA
recipients. While we may never know whether the tail wagged the dog or vice
versa, exploring the strength of the distinction drawn by the memo provides a
fruitful entry point into understanding the rationales behind the President’s
new program as a whole.
As we noted last night, in the
debate leading up to the President’s announcement of administrative immigration
relief, most commentators acknowledged that his prosecutorial discretion was
not unlimited—that somewhere a line would be crossed from permissible effectuation
of enforcement priorities and to an unconstitutional failure to enforce the
law. Yet most commentators—especially proponents
of the President using his discretion to provide relief to broad categories of
unauthorized immigrants—have been reluctant to specify where that line might be.
We think this is because the line cannot
be drawn with precision using conventional legal analysis. Last night the debate changed with the OLC
opinion’s decision to draw a sharp line.
opinion is a fascinating and important legal document, and in our view it
reflects a novel conception of the President’s enforcement authority. The memo ties the President’s use of his
prosecutorial discretion directly to “congressional priorities.” Again and again, the memo emphasizes the
importance of whether a discretionary decision is “consistent with . . . the
priorities established by Congress” in the Immigration and Nationality Act. Where the decision to grant relief tracks
priorities reflected in the statute, such as keeping intact the families of
citizens and lawful permanent residents, it falls within the zone of discretion.
But where the relief cannot be linked to statutory provisions, the executive is
constrained. This is the reason OLC
concluded that providing relief to the parents of DACA recipients would not be
Suppose you are a sitting Supreme Court Justice. To some degree you are concerned about who your successor will be. As the political scientists put it, your ideal point is, well, you. You want your successor to be as much like you as possible (if you're a conservative, just as conservative -- but no more conservative -- than you are, if you're a liberal, just as liberal -- but no more liberal -- than you are.) [I ignore the possibility that your actual behavior is itself strategic -- that is, you would like to be more liberal or conservative, but the conditions of the current Court are such that you are constrained to be no more liberal or conservative than your votes indicate.]
Consider the calculations you do today. Right now, your successor will take his or her seat as a result of a process in which a Democratic President is constrained by a Republican Senate. If you wait, there are four possibilities: another Democratic President similarly constrained, another Democratic President with a Democratic Senate, a Republican President with a Republican Senate, and a Republican President constrained by a Democratic Senate. You have to place probabilities on each of those possibilities, and then figure out how close a successor chosen under each of those conditions would come to your ideal point.
Without going through all the details, I suggest that, placing reasonable probabilities on each of the possibilities, it wouldn't be irrational for either Justice Ginsburg or Justice Scalia to conclude that retiring now would yield a successor closer to her or his ideal point than waiting.
But, of course, I'm asking you to suppose that you are sitting Supreme Court Justice. Which means that you have a quite high (probably irrationally high) sense of the contribution to the public good that you, and only you, can make. (Put more formally, you think that any successor will be so far from your ideal point -- again, you -- that small differences can be ignored.)
Mark Twain comes to mind: "Suppose you were an idiot, and suppose you were a member of Congress. But I repeat myself."
Rarely has the legal basis for an important government
action been so misunderstood and mischaracterized. In the coming days, Balkinization's symposium
devoted to this subject will include posts from several scholars who are much more
familiar than I with the particularities of the immigration statutes at
issue. For starters, however, I
thought it might be useful, and important, to dispel some of the more commonly
heard myths about the DHS enforcement priorities and “deferred action” policies
that the President just announced. (See also Walter Dellinger's take here.)
1.It’s not “unilateral”
executive action. Yes, of course the President has acted without any new statutory enactment, and his initiative was made necessary only because of intransigence in the House that prevents a vote on more far-reaching immigration reform (see Point 9, below); nevertheless it is important to emphasize that the new DHS enforcement priorities and deferred action status policy are being promulgated pursuant to statutorily delegated
pages 4-5 of the opinion of the Office of Legal Counsel. And OLC’s ultimate conclusion is that the new initiative is
“consonant with congressional policy embodied in the [Immigration and
Nationality Act]” (p. 24).On a
first read, OLC’s analysis of the scope of DHS’s statutorily conferred
discretion, and how it has historically been exercised, appears to be solid,
careful, measured and (as explained below) limited. Whether or not OLC is correct in all of the particulars
of its analysis, however—a question that, as mentioned above, I’ll leave to
others who have greater expertise than I do—the important point is this:What is at issue is simply a question
of statutory interpretation, about the discretion that Congress has conferred upon the Secretary of DHS.
2.It’s not an
example of constitutional “monarchy,” or a replay of Bush Administration claims
of preclusive executive authority.
Indeed, it’s not an exercise of constitutional ”executive power” at
all: The President and Secretary
of DHS are not invoking any Article II authority, let alone an authority to
override or disregard statutes.
(The OLC opinion does say (p.4) that the discretion that Congress is presumed
to have conferred upon the Executive is “rooted” in the President’s
constitutional duty to take care that
the law is faithfully executed:
The point of invoking the “Take Care” Clause, however, is that
implementing such enforcement priority decisions is“faithful” to the laws Congress has enacted.)
3. It does not
“cut out Congress”—indeed, it relies upon statutory authority.Nor does it
contradict what Congress
has prescribed. Neither the
President nor the Secretary nor OLC has said anything to suggest that Congress
could not, by statute, require a different enforcement scheme—to the contrary,
OLC specifically acknowledges (pp. 4, 6) that Congress could legislate limits on
enforcement discretion that the agency would be obliged to follow. Moreover, and of great significance, OLC
specifically concludes that, because enforcement priority decisions must be “consonant
with, rather than contrary to,” Congress’s policy decisions as reflected in the
governing statutes (pp. 5, 20), it would not
be permissible for DHS to afford deferred action status to one category of
aliens that the agency had proposed to cover (parents of children who have received deferred action
status under the so-called “DACA” program): Offering deferred action status to such aliens, OLC opined, would be unlawful because it would “deviate
in important respects from the immigration system Congress has enacted and the
policies that system embodies” (p. 32) and because it would not be analogous to deferred action programs that Congress has implicitly approved in the past (pp. 32-33).
4.As that same
OLC analysis demonstrates, the new deferred action policy is not premised on a
theory of unlimited enforcement
discretion—to the contrary.Moreover, it is not unprecedented. Conferral of “deferred action” status is a longstanding and regular
feature of the immigration removal system that has been acknowledged by the
other two branches (p.13), and Congress has never acted to disapprove or limit
it; indeed, Congress has enacted laws that appear to have acquiesced in the
practice, and OLC makes a strong case that the legislature has in some instances actually
endorsed it (pp. 18-20, 23-24).
5. It is not an "amnesty," nor does it afford anyone a license to violate any law.That is to say, it is not the exercise of a “dispensation” power that
the President does not have. And it does not give the covered aliens any status as lawful immigrants, or
provide a means of them obtaining citizenship or permanent resident status.
“What if the next President did not enforce his own set of ‘disfavored’ laws?”
scenarios are not analogous--nor does the deferred action initiative create a precedent for any and all such nonenforcement hypotheticals. [UPDATED for clarification.] What if the next President were to announce that he or she were not going
to prioritize clean-air enforcement, or prosecution of estate-tax evaders? Doesn't the deferred action policy sanction such future executive "lawlessness"? Three points in response to such hypos: To begin with, the rationale of the OLC opinion might actually preclude, rather than authorize, many such hypothetical future presidential policies: "[T]he Executive cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences," OLC writes. "In other words, an agency's enforcement discretion should be consonant with, rather than contrary to, the congressional policy underlying the statutes the agency is charged with administering." Some of the "future President" hypos, that is to say, might be more like the DHS proposal to grant deferred action status to the parents of DACA aliens, which OLC concluded would not be lawful. Second, even in such hypothetical cases involving wholesale decisions not to prosecute violations of criminal laws, the executive's announcement would not give companies a free pass to pollute, or taxpayers a
license to withhold taxes. A general nonenforcement policy in those contexts would leave the violators culpable,
and subject to subsequent punishment, for the actions they undertook during the
period of the executive’s nonenforcement policy:Their potential fines would accrue every day, and they would
remain in danger of being convicted as criminal malefactors. Here, by contrast, there’s no duty for the
aliens in question to leave the U.S., let alone any criminal conduct that is
being ignored. Finally, and most importantly, nothing the President and Secretary have announced tonight would give any aliens an immunity from culpability from, or a defense to,
any unlawful conduct, or a legal “green light” to violate the law. (Nor will this initiative increase the odds that future Republican administrations would implement their own enforcement priorities, since they already do so: For example, in recent decades, when the DOJ Civil Rights Division has been in Republican control it has prosecuted very different types of race discrimination cases than it has under Democratic administrations.)
policy will not result in “underenforcement” of the immigration laws or
constitute any other “abdication of the duties assigned to the agency” (OLC
Opinion at 7); nor is it akin to a Nixonesque “impoundment” of funds.The OLC opinion explains that DHS will likely
spend the same amount of its appropriated funds on removal actions, and thus the
deferred action policy (which covers only about one in every 30 undocumented aliens in the country) will almost certainly not even affect the total number of aliens the agency
removes from the U.S.—what it will do, instead, is merely to adjust, in relatively
small measure, which particular aliens
will not even guarantee aliens in deferred action status that they won’t be
removed.For one thing, DHS could revoke
its policy—tomorrow, or next year, or in the next Administration—and at that
point it could start removing the very same aliens who are covered by this
initiative.Moreover, even in the
much more likely case that DHS does not
change its new policy, that policy authorizes Immigration and Customs Enforcement Field Office Directors to order the removal of any covered alien if it would serve “an
important federal interest.”
9. It does not accomplish what the President has asked Congress to do, and what can only be done by enacting a new statute. Again, it is not an “amnesty,” and does not confer any permanent status on any group of aliens, let alone afford them a legal entitlement to remain in the United States. That remains something that requires legislative action . . . and that the President therefore continues to implore Congress to do. 10.The new
policy will not “deter bipartisan cooperation,” or put a crimp in any statutory
reform efforts that might become law.Congress
can enact a bill tomorrow if it wishes—the Senate has already passed a bill
that awaits action by the House, and the Executive’s initiative this evening will
not prevent Republicans from discussing or proposing alternatives, especially
after they control both houses of Congress next year.