I received an advance copy of Charlie Savage’s “The Power Wars.” This nearly-800 page tome offers the definitive account of Executive Power in the age of Obama. You should buy a copy, and read it carefully. Most salient to readers of this blog will be the internal struggles between the Office of Legal Counsel, the Department of Defense, the White House Counsel, and the President himself. With respect to the drone strike of an American citizen, the war in Libya, and other instances, OLC failed to provide any meaningful check on the White House, and the President sought advice from whoever told him what he wanted to hear. Savage names names, and you will read quite a lot about the work of David Barron, Marty Lederman, and Harold Koh.
Most relevant to my research is the chapter on DACA and DAPA. I will discuss some of the highlights (from a 3-page section) in this post.
First, Savage confirms something that was implicit in the 2014 OLC memorandum:
In a hardball twist, the administration set up the program so that it was self-funded through applicant fees to operate it. That meant Congress could not block it by refusing to appropriate taxpayer dollars for it.
When debating this topic, I have explained this fact makes the suit by the state’s particularly salient, because there is no way for Congress to stop DAPA or DACA.
Second, Savage reports that the President sought to go as far as his lawyers would let him go.
By June 2014, it was clear that Congress would not enact any immigration reform before Obama’s presidency was over. Vowing to do as much as he could to fix the system without Congress, Obama asked for options. His policy-decision process, characteristically, was heavily legalized. In meeting with immigration advocacy groups, Obama would point to Neil Eggleston, his new White House counsel, and tell them, “I’m going to go as far as he says I can.” Eggleston, in turn, conferred with Karl Thompson, the new acting head of the Office of Legal Counsel.
This comports with a November 2014 article in the Times where DHS Secretary Jeh Johnson worked to use “our legal authorities to the fullest extent.” At each juncture, the President told Johnson to keep pushing farther.
In the meantime, Mr. Johnson’s review of the president’s legal authority was supposed to help resolve the issue. But his first attempt in May was a disappointment, White House officials said, because in the president’s view, he did not go far enough. The effort only sought to modify the guidance for immigration agents, and did not provide work permits or directly shield anyone from deportation.
And yet, with Republicans still struggling to move forward, the president’s Democratic allies on Capitol Hill reminded him that even Mr. Johnson’s tepid suggestions would probably derail any hopes for legislation.
Mr. Obama told Mr. Johnson to try again, and then announced that he would delay the results of the review until the end of the summer, hoping to give Mr. Boehner one last chance for action.
Politico offered a similar report:
Obama and Johnson, as well as their staffs, traded draft memos and ideas for months. By one count, they produced more than 60 iterations of the proposals. Johnson’s aides would draft something, then shoot it over to Eggleston and Munoz to examine and return with revisions.
Third, Savage notes how OLC overruled a request to grant deferred action to the parents of the DACA beneficiaries.
The Obama team also looked at granting the same relief to several million additional parents of noncitizen “Dreamers,” the younger immigrants brought to American soil as children and whom the executive branch had granted essentially indefinite protection from deportation under the 2012 program. But Thompson, the Office of Legal Counsel, argued that that would be a step too far. Existing immigration law did not make close relatives of noncitizens eligible to apply to stay in the United States, even if those noncitizens had been granted temporary relief from deportation. Thompson’s idea was that drawing this line made Obama’s plan for allocating prosecutorial resources dovetail with the structure of immigration law as Congress had enacted it.
This is a very important point, that I hope doesn’t get lost. The general premise of the OLC memo is that immigration law does have a structure, and some classes of aliens are offered differing degrees of protection. Thompson’s ultimate memo drew the line at the parents of noncitizens. It is true that the Dreamers would never be able to petition for a green card for their noncitizen parents. But, as I explain in my article in the Georgetown Law Journal Online, this exact same reasoning applies to the parents of LPRs–a group that was protected by DAPA. Further, the non-citizen parents of citizen children would have to wait until the child turns 21 to petition for a green card. This two-decade gap suggests Congress strongly disfavors this group. The OLC memo elides this point. Even so, Thompson’s general framework is correct, and conflicts with the arguments advanced by leading immigration law professors that the INA has no structure. During a debate on DAPA with Professor Adam Cox–co-author of an important article on immigration law arguing that the President has vast amounts of authority through “de facto delegation”–he strongly disagreed with the OLC memo. He said that Congress has effectively “handed over the keys” to the President. OLC thankfully rejected this limitless notion of delegation. But more importantly, leading to the next point, by stating this position, OLC put POTUS–and the SG– in a bind.
With respect to expanding deferred action to the parents of the DACA beneficiaries, the Times reported:
He instructed Mr. Johnson to undertake a much broader examination of his executive authority, but the secretary and his team still concluded that Mr. Obama could not grant protections to seven million or more immigrants who might have qualified under an immigration bill passed by the Senate in 2013, as advocates had demanded. After consulting with Mr. Obama, they eventually decided on five million.
Fourth, Savage chronicles the difficult decision of whether to reduce the opinion to writing.
Thompson’s objection to including parents of “Dreamers” raised the question of whether the Obama administration should record his legal analysis on that issue in an authoritative Office of Legal Counsel memo he was writing, or whether the memo should only address the steps the administration was going to actually take.
Savage’s account doesn’t note that in 2012, OLC only offered “oral” advice on the constitutionality of DACA. I’m glad they did publish it. I was on the PBS News Hour the day before DAPA was formally announced, and I called on OLC to release a memorandum explaining the legality of the policy.
Until very recently, the president said over and over and over again he doesn’t have the authority to do this. Now he says his position is legally unassailable. I would like to see the memorandums from the Department of Justice explaining, what is the legal basis for this? What does this mean? What are the implications of this?
If he can do this, what else can he do? And we need to have this debate before the action happens, not afterwards.
(Watching the video again for the first time in a year, I realize I made quite a number of misstatements–I have had a serious crash course in immigration law since then.)
Fifth, we see how DHS viewed the OLC memo as drawing the line too narrowly.
[Lucas] Guttentag [a Stanford and Yale Law Professor who joined DHS] believed that Thompson 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. Guttentag argued against memorializing Thompson’s advice in the memo, saying it would preclude the executive branch from having the option of choosing to help that group of people in the future.
This is the most common critique from the immigration professoriate–that the OLC memo read immigration law too strictly. As I noted earlier, immigraiton lawyers see very little role, if any, for statutes, and view the entire corpus of law to be a product of executive branch determinations. (I had a symposium piece in the Washburn Law Journal making this point).
Sixth, ultimately, the White House went ahead with publishing the memorandum because it did show some limits, and would thus be more defensible.
But Eggleston argued that showing that 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.
This is in contrast with previous instances where OLC was ignored, such as with the Libya “hostilities.”
Seventh, Eggleston said this was as far as the executive action could go.
This is the high-water mark, Eggleston added. There is never going to be anything more after this. Eggleston directed Thompson to include the negative analysis about parents of “Dreamers” in his formal written memo, which the administration made public.
In the age of Obama, the White House “directs” OLC of what analyses to include. So much for independence, huh? Also, this high-water mark is silly. As I’ve blogged, Hillary Clinton already said she would go beyond DAPA and offer protection for the parents of DACA beneficiaries. I suppose she can just disregard Thompson’s negative analysis. Savage writes:
But Eggleston may have been wrong about the high-water mark, because executive power tends to act like a ratchet: a president does something unprecedented that seems like the new outer boundary, but then a successor treats that as a baseline and goes even further.
Charlie is exactly right. And when the White House “directs” OLC what to write, the baseline can move very quickly.
Eighth, as I was reading the new paragraph, I found myself in total agreement with a quote–then when I saw who said it, I realized it was mine. Savage graciously quoted me from my PBS News Hour appearance the night before DAPA was announced.
“Imagine a President Ted Cruz decides not to enforce environmental laws or imagine if a President Rand Paul decides not to enforce a corporate income tax,” said Josh Blackman, a law professor at the South Texas College of Law. “The president’s ability to suspend the laws and not enforce them raises serious implications.”
I made this somewhat-off-the-cuff argument, based on something I had written in Gridlock and Executive Power, as a way to shift the tenor of the debate. Frank Sherry, who was arguing on the other side, was merely repeating talking points about how every President since Eisenhower had used deferred action. (This talking point quickly fell apart after I noted that in the past, it was done as part of international human rights work, or when it was in connection with a statutory regime). But in any event, I wanted to make clear what would happen if a different President used Obama’s same power. As I said this, Gwenn Ifill quickly turned to Sherry and asked him. At the time, I couldn’t see Ifill, but when watching the video later, I could see the look of concern in her face. Executive power is indeed a one-way ratchet. Those who supported Obama’s policies will likely rue the day when a different President does stuff they do not like.
Ninth, Charlie offers an insightful take to make sense of the Obama administration’s bizarre notion of executive power:
Over the course of my conversations with some of Obama’s legal advisers, I became convinced that this seeming paradox made perfect sense to him. One factor, surely, was that he deeply believed in the virtues of the domestic-policy outcomes he was trying to achieve, whereas he was always conflicted about war. But Obama also felt far more comfortable about using asserting executive powers in the domestic arena precisely because the president’s power there is far more constrained; Congress has greater power to push back and what the president is doing is out in the open, so critics can more easily challenge it through the political or legal process. By contrast, precisely because there are far fewer countervailing forces in matters of national security and foreign affairs, Obama seemed to feel that it was more important there to seek out and identify constraints to his own authority and that of future presidents. This instinct explains Obama’s deep reluctance, relative to Bush, to claim that his commander-in-chief powers could override a statute, and Obama’s insistence that the international law of war limited his detention powers.
This may be a bit too charitable for my taste. Going back to the first point, DACA and DAPA were structured as self-funding programs specifically because the Congress could not defund them. The President has shown an absolute disdain for Congress (perhaps deservedly so) and sees little concern for the Legislature checking his power.
If you can’t tell by now, I strongly recommend you read the entire book.
