Final Editions: The Constitutionality of DAPA Part I in Georgetown Law Journal Online, and Part II in the Texas Review of Law & Politics

April 27th, 2015

I am pleased to announce that my two articles on the legality of DAPA are now final. First, the Georgetown Law Journal Online has published my article, “The Constitutionality of DAPA Part I: Congressional Acquiescence to Deferred Action.” Second, the Texas Review of Law & Politics has published my article, “The Constitutionality of DAPA Part II: Faithfully Executing The Law.”

A brief note about the origin of these pieces. DAPA was announced on November 20, 2014. After my initial cautious reactions (NY Times, LA Times), I began to realize that the OLC memo justifying the policy had weaknesses from a separation of powers perspective (National Review), but I did not know nearly enough about immigration law to make an informed judgment. Over the next month, I dove deep into the INA, and thanks to the help of a few colleagues who are experts in this area, I began to sketch a theory of how DAPA was inconsistent with previous grants of deferred action. That work culminated in Part I.

I owe a deep and special thanks to the editors of the Georgetown Law Journal Online. Last summer we had discussed publishing a reaction piece on Noel Canning, but by the time I was done with it, it took on a life of its own and became Gridlock and Executive Power. (At this point, it will probably become a book before an article).  But we stayed in touch. When I realized that the timing of this article would be critical, I reached out to the editors of the GLJ Online, and they were enthusiastic to provide a home for this timely piece. They managed to go through the entire publishing process in less than three months.

As I was writing Part I, I realized there was a significant gap with respect to the constitutional issue–there was very little written on the Take Care Clause and DAPA. So, rather than trying to fit in a Take Care clause analysis in Part I, where it didn’t really fit, I decided (on about 2 minutes of deliberation) that I needed to write a second article, focusing solely on the Take Care clause. This article evolved parallel to the litigation in the district court (see here and here). As Texas offered new arguments, and the government produced numerous documents and declarations, I was able to piece together how DACA, and now DAPA, operate. I could not have written the article I did at the outset

I also owe a debt of gratitude to the editors of the Texas Review of Law & Politics. I pitched the idea to the editors on December 26, 2014, with only an outline of what I wanted to write about. Based only on the idea, they accepted it. I labored to write the article in about 6 weeks. They expedited it through the editing and publication process, and published a polished piece that offers a top-to-bottom analysis of DAPA. I still can’t believe it came together the way it did.

(On the downside, I had no time to work on my Obamacare book during the past three months, but duty called).

There is always the risk when publishing an article of being preempted. These articles posed a significant risk. Had the district court dismissed the challenge, and the program gone into effect, the articles wouldn’t have been worth the paper they were printed on. But here, the publishing risk paid off for the journal. Kudos to these enterprising and entrepreneurial law journals.