Thursday, November 20, 2014

Symposium on Administrative Reform of Immigration Law

Guest Blogger

Adam Cox & Cristina Rodriguez

[The collected posts for the symposium are available here.]

Tonight, President Obama announced sweeping administrative reform of immigration law. His efforts raise important questions about the legal basis for his actions and its implications for the future of immigration law and the separation of powers.

Over the next several days, we will convene an online symposium here, on Balkinization, to discuss and debate these issues with a group of leading immigration law and constitutional law scholars and litigators.  While much ink has been spilled in recent months over the legality of administrative immigration relief, much of that writing has been necessarily speculative.  Now we know the basic facts.  The President’s administration will exercise prosecutorial discretion to defer the removal of many parents of U.S. citizens and lawful permanent residents, making them eligible for work authorization for up to three years at a time.  This action is estimated to encompass 3.3 million unauthorized immigrants.  When combined with the last round of administrative relief—the Deferred Action for Childhood Arrivals Initiative—roughly 5 million persons, or 40 percent of the unauthorized population, may be affected.

As the President’s announcement made clear, however, there will be limits to his exercise of discretion.  The parents of DACA recipients will not be included.  This is an extremely important fact—not just as a political matter, but also, potentially, as a legal one.  Over the course of recent debate, writers on all sides of the issue have struggled mightily to avoid a central question about the exercise of prosecutorial discretion in immigration law: how far is too far?  Opponents have argued that the president has crossed the line into unconstitutionality; defenders have contended that he has not. But almost no one has been willing to say where that line is located.  Tonight that changed.  An opinion from the Office of Legal Counsel, made public by the administration, lays out the legal basis for the President’s actions and provides scholars with new theories of executive power and prosecutorial discretion to explore.  Importantly, that opinion concludes that, while the President has authority to grant relief to the parents of US citizens and LPRs, the President lacks legal authority to grant such relief to the parents of DACA recipients.

We are among those who believe the basic parameters of executive discretion in immigration law permit the President to take the steps he has.[1] But the OLC opinion raises important questions about the limits of discretion, as well as a new gloss on the legal issues—the legal claim that the President’s actions are consistent with congressional priorities as reflected in the Immigration and Nationality Act. 

The combination of the President’s sweeping action with an official government defense of the program’s legality—something that did not accompany DACA—makes now a crucial moment to discuss two fundamental questions that have long been embedded in the debate over administrative relief.  First, the question of scope: of how the size and composition of the group offered administrative relief bears on relief’s legality.  Second, the question of how the form of relief—that is, the precise benefits that are conferred through administrative action—affect its legality?

These and other questions will be ones that we and the other symposium participants will engage and debate in the coming days.

Adam Cox is Professor of Law at NYU School of Law and can be reached at Cristina Rodriguez is Leighton Homer Surbeck Professor of Law at Yale Law School and can be reached at

[1] For our early work thinking about these issues, see Adam B. Cox & Cristina M. Rodriguez, The President and Immigration Law, 119 Yale Law Journal 458 (2009).

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