New Essay: “Immigration Inside the Law”

November 30th, 2015

Despite my routine criticism of the Obama Administration’s executive overreach, one area where I find myself largely in agreement is the framework established by the 2014 DAPA OLC Opinion. In short, the cornerstone of the inquiry is whether the President’s actions are “consonant” with congressional policy. This is a helpful restatement of Justice Jackson’s framework from Youngstown. Where I part from the Obama Administration is on the facts of what congressional policy embodies. As I document in an essay I published last year in the Georgetown Law Journal Online, DAPA is not “consonant” with congressional policy embodied in the text and history of the INA. I think OLC faltered in looking at the scope of acquiescence far too broadly. During a remarks at the Appellate Judges Education Institute, former OLC Chief Virginia Seitz noted that her conception of congressional acquiescence expanded during her time in government service.

(If the federal government loses in U.S. v. Texas, it will be on this ground (as I’ve noted for over a year now). This is why the “bridge” analogy I’ve developed to explain past exercises of class-wide deferred action is so pivotal. The 5th Circuit adopted this approach.).

In any event, one of the most important attributes of the Obama Administration’s “certain circumstances” approach to executive power, is that OLC determined that the President could not grant deferred action to the parents of DACA beneficiaries, as this was far too attenuated from Congressional policy. It would have effectively stacked deferred action on top of deferred action, without any familial relation to a U.S. Citizen. This was a bridge too far for OLC.

However, this conclusion was not accepted by the immigration professoriate. In a Nov. 3 letter to the President–on the eve of the announcement of DAPA–law professors Hiroshi Motomura, Shoba Sivaprasad Wadhia, Stephen Legomsky, and Michael Olivas wrote that “there is no legal requirement that the executive branch limit deferred action or any other exercise of prosecutorial discretion to individuals whose dependents are lawfully present in the United States.” Under the professors’ views, it was irrelevant if the individual had immediate family members—let alone dependents—who were citizens of LPRs.  The professors explained quite candidly that “any other criteria for deferred action or other exercises of prosecutorial discretion—are policy choices, not legal constraints.” Based on this reasoning, any group of aliens the President determines warrant humanitarian relief, could be afforded deferred action.  Therefore, Congress and the INA impose absolutely no constraints on the prosecutorial discretion of the President, so long as the President does not entirely stop deportations.

OLC flatly rejected this reasoning.  Even for President Obama—no shrinking violet to testing the bounds of executive power—immigration policy would be changed inside, not outside the law.

“Immigration Outside the Law” is the title of Hiroshi Motomura’s magisterial tome. In an essay for the Washburn Law Journal’s sympoisum on Motomura Foulston Siefkin’s lecture, I discuss “Immigration Inside the Law.” Here is the abstract:

To many scholars, paradoxically, practical immigration law has little to do with actual immigration law. Professor Hiroshi Motomura, a leading immigration law professor, admits quite candidly that the “traditional distinction between Congress’s authority to make law and the President’s authority to enforce law—always a very imprecise line to begin with—has little practical meaning” for immigration enforcement. It is no coincidence that Motomura’s magisterial tome is titled Immigration Outside—not inside—The Law.

In this contribution to a symposium on Prof. Motomura’s Foulston Siefkin lecture, I contrast the disconnect between the professoriate’s view on immigration law and that of the Obama Administration. Specifically, I chronicle how the Office of Legal Counsel grounded the legality of Deferred Action for Parents of Americans (“DAPA”) in congressional acquiescence, rather than an unbounded notion of executive power.  While I ultimately conclude that OLC’s defense of DAPA fails, at a minimum, its recognition of Congress’s persistent, if not quiet role in cabining executive discretion serves as a powerful refutation of the scholarly consensus of immigration outside the law.

Charlie Savage’s book, Power Wars, puts a finer point on how even the Obama Administration would not accede to the professoriate’s vision of executive power with respect to deferred action:

The decision to publish the OLC Opinion, rather than limit it to “oral” advice—as was the case with the 2012 DAPA decision—was critical in rebutting the professor’s positions. In Power Wars, Charlie Savage reports that White House Counsel Neil “Eggleston argued that showing that [OLC Chief Karl] Thompson had said some steps they had considered would not be lawful would show that they had really thought about it and obeyed legal limits.”[1] Lucas Guttentag, who was on leave from Stanford Law School as Senior Counsel to U.S. Citizen and Immigration Services,[2] reportedly argued against memorializing this memo, “saying it would preclude the executive branch from having the option of choosing to help [the parents of DACA beneficiaries] in the future.”[3] Guttentag, in line with Motomura and others, “believed that [OLC] had drawn the line too narrowly by focusing unduly on whether someone had a child who is an American citizen, to the exclusion of other grounds in the law that an immigrant could use to gain legal status.”[4] But the White House rejected this scholarly consensus. As Savage recounts, Eggleston said “[t]his is the high-water mark. There is never going to be anything more after this.”[5] By putting the opinion into writing, the Obama Administration was setting in stone limits on the scope of immigration enforcement, based on the laws of Congress, that repudiated the capacious understandings advanced by the professoriate. This approach fits in with the modus operandi of the Obama Presidency with respect to executive power—rather than defining a broad conception of Article II, the administration’s lawyers determined that a specific exercise of executive power is appropriate under “certain circumstances,” implicitly suggesting that it would not be appropriate in all other circumstances.[6]

I welcome any thoughts or comments on the essay.