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I have uploaded to SSRN a revised version of “The Constitutionality of DAPA Part II: Faithfully Executing the Law” that will be published in the Texas Review of Law & Politics. It still has to go through a few more rounds of editing, but the body is solid.

Here, I want to focus on one aspect of Judge Hanen’s opinion that has been widely criticized–the fact that he quoted President Obama’s statements that he lacks the power to independently defer deportations. For purposes of the Take Care Clause, these sorts of statements–disclaiming power and then claiming it after congressional defeats–is relevant to show good faith compliance with the Constitution.

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The President’s seventh, and most pointed comments, came on March 6, 2014, during an appearance on Univision.[1] The host asked him about “Guadalupe Stallone from California, [who] is undocumented.  However, her sons are citizens.”[2] She feared deportation, even though her children could remain in the country. The President explained that he could not help Ms. Stallone. “[W]hat I’ve said in the past remains true, which is until Congress passes a new law, then I am constrained in terms of what I am able to do.”[3] DACA, he admitted “already stretched my administrative capacity very far.”[4] The President could go no further because “at a certain point the reason that these deportations are taking place is, Congress said, ‘you have to enforce these laws.’”[5] Citing Congressional power to distribute funding, the President reiterated, “’I cannot ignore those laws any more than I could ignore, you know, any of the other laws that are on the books.”[6] Under DAPA, Ms. Stallone’s deportation would almost certainly be deferred because she is a mother of minor citizen children. This is true, even though as the President explained, Congress imposed laws, and funded the agencies, so the President had to enforce the law.

However, leading up to November 2014, the President’s position evolved from “impossible” to “absolutely.” During this process, the President announced that in “the face of that kind of dysfunction, what I can do is scour our authorities to try to make progress.”[7] What limits exist on how far he can scour? The President explained that to resist the “temptation to want to go ahead and get stuff done” when “there’s a lot of gridlock  . . . .I’ve tried to . . . make sure that the Office of Legal Counsel, which weighs in on what we can-and-cannot do, is fiercely independent, they make decisions, we work well within the lines of that.”[8]

While claims of a supine OLC are nothing new—as the President has disregarded OLC’s opinion regarding “hostilities” in Libya[9]—this statement is particularly implausible because it was the President who personally pushed his legal team to go further and exert even broader assertions of executive power. The New York Times reported that the administration urged the legal team to use its “legal authorities to the fullest extent. . . .”[10] When they presented the President with a preliminary policy, it was a “disappointment” because it “did not go far enough.”[11] Scouring the bottom of the presidential barrel for more power, Obama urged them to “try again.”[12] And they did just that. Politico reported that over the course of eight months, the White House reviewed more than “60 iterations” of the executive action.[13] The final policy, which ultimately received the President’s blessing, pushed presidential power beyond its “fullest extent,” as it embodies discretion in name only. Further, the policy is in tension with numerous statements the President personally made explaining why he could not act alone.

The Washington Post Fact Checker awarded this reversal an “upside-down Pinocchio for his flip-flop.”[14] While flip-flops are par for the course in politics, and usually warrant no mention in constitutional discourse, they are salient for the “Take Care” clause. When the President repeats over and over again that he lacks the power to stop deportations, it has special salience that the Executive acknowledges the limitations imposed by the Separation of Powers—something the President rarely does.[15] This is true for Presidents “learned and unlearned in the law.”[16]

After the President disclaims inherent executive power, it sends a signal to the Congress: when voting, the Legislature can rest assured that if they vote against the law, it will not be done anyway. But when the President suddenly “discovers” such authority after Congress rebuffs his efforts, the usual framework for the democratic process and the rule of law itself is turned upside down.

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On Thursday, February 19, the Illinois Federalist Society Chapter hosted me for a wide-ranging discussion on Data, the First Amendment, Privacy Regulations, and the “Right to be Forgotten.” Joining me as my interlocutor was the ever-entertaining Jason Mazzone. Here is the video, audio, and some photos of the event.

I have posted to SSRN the near-final version of “The Constitutionality of DAPA Part I: Congressional Acquiescence to Deferred Action.” It will be published in the Georgetown Law Journal Online.

It still has to go through another round of cite-checking, but the body of the article is close to complete. In this version, I added a lengthy discussion of President Bush’s 1990 “Family Fairness” plan. While OLC downplayed the relevance of this program, in its sur-reply, DOJ pivoted much more strongly to discussing it. Here is the new section, which explains why “Family Fairness” does not provide a precedent for DAPA:

            There is a sixth instance of deferred action that OLC puts surprisingly little weight on—the 1990 “Family Fairness” program instituted under President George H.W. Bush.[1] A brief history will explain why. In 1986, President Reagan signed into law the Immigration Reform and Control Act (IRCA).[2] This bipartisan act provided a path to citizenship for up to 3 million immigrants who had been continuously present in the United States since 1982. However, the law did not cover eligible immigrants’ spouses and children who did not themselves meet the residency requirement. This gap created so-called “split-eligibility” families. Generally, once a beneficiary of IRCA received LPR status, he or she could petition for a visa for a spouse or child.[3] Under the IRCA, however, during this potentially lengthy and cumbersome process to obtain a visa—roughly three-and-a-half years after status was approved[4]—these immediate family members without legal status would be subject to deportation.[5]

In 1987, the INS put on hold deportations of children under the age of 18 that were living with a parent covered by IRCA.[6] In effect, this temporary deferral of deportations was meant to give the parent the appropriate time to complete the process, and then allow the parent to petition for a visa for the child. At this point, it made little sense to deport children whose parents would, in due time, receive lawful status, and by extension petition for a visa for their children.[7] Attorney General Edwin Meese’s policy focused on circumstances where there were “compelling or humanitarian factors” that counseled against deportations.[8] On the other side of this deferral, a legal status awaited the child. In this sense, the deferral of deportations served as a bridge. The pot of gold was glistening, awaiting the alien on the other side of the rainbow.

In July of 1989, the Senate passed what would become the Immigration Act of 1990. This bill, among other provisions, provided relief for the children and spouses of IRCA beneficiaries. The Senate bill was not brought up for a vote in the House until October 1990,[9] though, as the New York Times reported at the time, “passage of the new legislation seemed almost certain.”[10] It ultimately passed by a vote of 231-192, with 45 Republicans voting yea and 65 Democrats voting nay.[11] Despite disagreements about the economics of the bill, the Times reported, “few dispute the humanitarian aim of uniting families.”[12]

In the interim, between the Senate vote in July of 1989, and the House vote in October of 1990, spouses and children of IRCA beneficiaries, who would soon be provided with a process to obtain lawful status, were still subject to deportation. In response, in February of 1990, INS Commissioner Gene McNary announced a new policy[13] to expand the deferral of deportations of roughly 100,000—not 1.5 million (as reported in the OLC opinion)[14]—spouses and children of IRCA beneficiaries. This was a temporary stopgap measure to protect those who would soon receive a lawful status after the legislation was enacted.

On November 29, 1990, President George H.W. Bush signed into law the Immigration Act of 1990. On signing the law, the President said it “accomplishes what this Administration sought from the outset of the immigration reform process: a complementary blending of our tradition of family reunification with increased immigration of skilled individuals to meet our economic needs.”[15] With the signing of the law, the Family Fairness policy become immediately moot—exactly what the President had in mind by temporarily putting on hold deportations until Congress could finish passing the bipartisan legislation.

Both Presidents Reagan and Bush used prosecutorial discretion to keep together families. For the 40th President, the deferrals were used to afford time so that parents could petition for a visa for their children. For the 41st President, the deferrals were a temporary stopgap measure in the several months between votes in the Senate and the House. In both cases, it made little sense to rip apart families, when in due course, the spouse and children could receive a visa, ancillary to statutory authorizations. As a 1990 article in the New York Times explained, a legal resident under the 1986 amnesty with lawful status, “would [soon] be able to file a petition for his wife to be granted legal status, a process expected to take about two years.”[16] Protection was extended based on someone who already benefited from Congress’s naturalization laws.

While the American Immigration Council calls President George H.W. Bush’s policy a “striking parallel to today’s immigration challenge,”[17] it teaches just the opposite lesson.  Presidents Reagan and Bush deferred deportations for family members who would shortly be able to receive a lawful status by virtue of the status of their spouse or child. In sharp contrast, DAPA defers deportations for parents of citizen children—who need to wait at least 21 years to petition for a visa—and parents of LPRs, who will never be able to petition for a parental visa.

Perhaps recognizing this difference, the OLC opinion draws a distinction between the five previously discussed programs, and the Family Fairness policy. OLC characterizes the “Family Fairness” policy not as a deferred action program, but a “voluntary departure program.”[18] Specifically under the policy, aliens were “potentially eligible for discretionary extended voluntary departure relief,” not deferred action. Voluntary departure allowed “allowing an otherwise removable alien to depart the United States at his or her own personal expense and return to his or her home country.”[19] In this case, the aliens were not required to actually depart during this interim period. Further, while OLC contended that Family Fairness and DAPA were on a similar scale, the opinion acknowledged that DAPA will “likely differ in size from these prior deferred action programs.”[20] OLC did not consider Family Fairness a precedent with respect to deferred action.

Perhaps unwittingly, the OLC opinion makes clear that the Family Fairness program fits within the “bridge” construct: “INS implemented a ‘Family Fairness’ program that authorized granting extended voluntary departure and work authorization to the estimated 1.5 million spouses and children of aliens who had been granted legal status under the Immigration Reform and Control Act of 1986.”[21] Precisely! The temporary relief afforded to the beneficiaries of Family Fairness was connected to the 1986 IRCA.[22] The OLC opinion even makes clear that “Congress later implicitly approved” of the Family Fairness policy.[23] Such acquiescence is lacking for DAPA.

In short, Family Fairness served as a bridge—a very temporary one—until Congress could finish acting. President George H.W. Bush’s short-lived voluntary departure program was connected to the IRCA, and sandwiched between the Senate and House voting on a bipartisan bill.  As Professor Marguiles explains, “All of the relief provided under both Family Fairness and the 1990 Act was ancillary to legal status that would be available within a discrete and reasonably short period to recipients of that relief.”[24]

DAPA, in contrast, is not meant as a temporary stopgap measure while Congress finishes a bill in the works. It imposes a not-too-veiled quasi-permanent status. Though it is not binding on the winner of the 2016 election, as a practical matter, those given deferred prosecution and work permits will be effectively untouchable. The President has admitted as much, explaining that future presidents may “theoretically” remove DAPA beneficiaries, but “it’s not likely.”[25] Call it lawful status by estoppel.

(Citations below the fold).

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Syndicated radio host Mike Gallagher interviewed me about Judge Hanen’s program. Here is a clip.

I’ve been racking my brain, trying to figure out why DOJ didn’t have an appeal strategy ready to go on day one (here and here). For the last month, it has been clear (to me at least), that Judge Hanen would rule against the government. So why the dithering? Here we are on Friday, and no notice has been filed.

One possible option is that now the Solicitor General is involved in the process. In DOJ, the SG’s signoff is needed for any appeal (with good reason). It’s possible that now the SG is exerting some influence. I previously mentioned that while the DOJ’s initial briefing was pretty poor, the sur-reply got a lot better. I suspect the SG got involved then, and is now trying to correct this mess.

So what is the SG thinking? The choice is between a stay or an expedited appeal. Both have plusses or minuses.

The advantage of a stay is speed. The issue will be resolved quickly by the Circuit Court, and can get to SCOTUS before the end of this term, or perhaps expedited arguments in September (like in Citizens United). The downside of the stay is the burden of proof–the government would need to show some sort of irreparable harm if the stay is not granted. I’m not sure what the irreparable injury is, because with the injunction, the ex ante status quo remains in place. This was one of the stronger aspect of Judge Hanen’s opinion. In his words, you can put the toothpaste back in the tube. It will be easier for the courts to rule against DOJ here, by arguing that there is no urgency, and the normal appeals process can be complied with. So there is a severe downside to seeking a stay.

The advantage of a stay is that the burden of proof is lower, and it is (in theory at least) easier to win. The downside is speed. It may take a few months at the the 5th Circuit, potentially followed by en banc at the 5th Circuit, followed by certiorari. You may not get a decision till June 2016. This runs out the clock on the Obama administration, a point I made in NRO.

Of course, DOJ can do both, seek a stay and file a expedited appeal. But a decision on the former could possibly resolve the latter, if the 5th Circuit panel reaches the merits. So the SG may feel he is on stronger ground with an expedited appeal, rather than dealing with the heightened burden of seeking a stay.

One other option, suggested by several colleagues more politically attuned than me, is that this delay is deliberate for partisan gain. The President would rather drag this out so he can blame it on the Republicans. This could set up future immigration reform in 2016. I don’t know. I can’t imagine DOJ would allow such a reckless strategy, but if the government delays much longer, it may lend this theory some credence.

Update: About 2 minutes after my post, DOJ announced they would seek a stay on Monday. So now, they will have the higher burden of proof, but it will be resolved this year.

WH spokesman Josh Ernest says @TheJusticeDept has decided to seek a stay in Texas immigration case, docs to be filed “Monday at the latest.”

— Carrie Johnson (@johnson_carrie) February 20, 2015