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For my first constitutional law class, I provide a foundation our entire system of government by walking through the text of the Declaration of Independence, the Articles of Confederation, and the Constitution. I cover every section of the United States, and almost all of the clauses. It is a lot of material in two hours, but it is probably my favorite class of the year. Enjoy! And, as tradition, I give every student a Pocket Constitution on the condition that they bring it to every class!

The lecture notes are here. The live chat is here.

Our Founding Documents

• The Declaration of Independence
• The Articles of Confederation (pp. 1633-1638)
• The Constitution of the United States (pp. 1-15).
• The Adoption of the Constitution (19-27).
• Six broad themes of the Constitution (35-39).
• Map of the Constitution (39-42).

Note: Read these documents in their entirety. They’re not long. And no one should graduate law school without reading them at least once.

This is the Declaration of Independence (July 4, 1776).

This is the first page of the Articles of Confederation (Ratified in 1781).

These are the four pages of the Constitution of the United States of America. The Constitution was proposed on September 17, 1787, and ratified on June 21, 1788 with the ratification of New Hampshire, the 9th State to join the Union.

These are the first Ten Amendments to the Constitution, proposed in 1789 and ratified in 1791 (the phrase “The Bill of Rights” only came into common parlance following the Civil War).

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.

I have now posted the second part in my series on the Constitutionality of Deferred Action for Parental Accountability. Part I considered whether Congress has acquiesced to the scope of deferred action in DAPA–it has not. Part II addresses whether the President has complied with his duty under the “Take Clare” clause. He has not. Here is the abstract:

Article II imposes a duty on the President unlike any other in the Constitution: he “shall take Care that the Laws be faithfully executed.” More precisely, it imposes four distinct but interconnected duties. First, the imperative “shall” commands the president to execute the laws. Second, in doing so the President must act with “care.” Third, the object of that duty is “the Laws” enacted by Congress. Fourth, in executing the laws with care, the President must act in good “faith.” A careful examination of the four elements of the “Take Care” clause provides a comprehensive framework to determine whether the Executive has complied with his constitutional duty. This article assesses the constitutionality of President Obama’s “Deferred Action for Parental Accountability” (DAPA) on immigration through this lens of the “Take Care” clause.

First, DAPA is an extremely “broad policy” that was “consciously and expressly adopted” not as a means to enforce the laws of Congress, but to exempt nearly 40% of undocumented aliens in the United States-even those who were not previously subject to any previous enforcement action-from the threat of removal, and to provide them with work authorization. Second, DAPA was implemented without “care” for the immigration laws as it displaced officer discretion, both procedurally and substantively, with the Secretary’s blanket policy to turn meaningful review into a “rubber stamp.”

Third, DAPA finds refuge in none of the three tiers identified in Justice Jackson’s opinion Youngstown. Congress has and continues to oppose the scope of this executive action. Further, DAPA is not consonant with long-standing congressional policy towards deferred action. Previous uses were typically ancillary to statutory grants of lawful status or responsive to extraordinary equities on a very limited scale. In this bottom rung of authority, presidential power is at its “lowest ebb,” unentitled to a presumption of constitutionality. Fourth DAPA was not a good faith mistake of law, but a bad faith deliberate deviation. Implementing executive action to achieve several of the key statutory goals of laws Congress voted against reflects a deliberate attempt to circumnavigate around an uncooperative legislature. Exacerbating this conclusion is the fact that prior to the defeats of DACA and DAPA, the “sole organ” of the Executive Branch consistently stated that he lacked the power to defer the deportations of millions by himself.

This pattern of behavior amounts to a deliberate effort to act not in good faith, but in an effort to undermine the Laws of Congress. The duty under Article II has been violated.

I will have a lot more to say about this topic later. For now, I’ll make clear that a lot of the conventional wisdom of this case has been based on a superficial understanding of immigration law and prosecutorial discretion.

The Chief Justice’s dissent in  T-Mobile South, LLC v. City of Roswell had this gem for land-use and legal history wonks:

This concern might have force if towns routinely made these decisions in secret, closed-door proceedings, or if applicants were unsophisticated actors. But the local zoning board or town council is not the Star Chamber, and a telecommunications company is no babe in the legal woods.