Tomorrow, the U.S. District Court for the Southern District of Texas in Brownsville will hold a hearing about whether to issue a preliminary injunction halting President Obama’s Deferred Action for Parental Accountability (“DAPA”). Only two month ago, the President announced DAPA. Since then, I have spent a considerable amount of time studying and thinking about immigration law, prosecutorial discretion, and executive power.
During that time, I’ve found that much of the discussion about this policy has been premised on a superficial reading of immigration law, over-broad notions of prosecutorial discretion, and an unduly deferential vision of executive power. A large culprit in this thinking has been the OLC Opinion, which was in places misleading, and even disingenuous about the interaction Congress and the President with respect to deferred action. It even fooled me, at first.
With two articles, and an amicus brief, I aim to challenge that conventional wisdom.
First, “The Constitutionality of DAPA Part I: Congressional Acquiescence to Deferred Action” will be published in the Georgetown Law Journal Online. As I discuss in this post, Congress simply has not acquiesced to the scope of deferred action the President asserts with DAPA. It isn’t even close, and OLC misstates history to the contrary.
Second, I just posted to SSRN the second part in this series, “The Constitutionality of DAPA Part II: Faithfully Executing the Law.” As I explain in this post, the President has not complied with his constitutional duty to faithfully execute the laws.
Third, in an amicus brief I joined with the Cato Institute, we argue that the District Court should enter a preliminary injunction in favor of Texas, in light of the fact that Congress has not acquiesced to DAPA.
All of the filings in this case are available here.