The Washburn Law Journal held a symposium on Professor Hiroshi Motomura’s lecture on immigration law. The title of Hiroshi’s book, Immigration Outside The Law, served as a fitting point for my response, Immigration Inside The Law. The first sentence of the essay explains the general lessons I’ve gleaned over the last year. “To many scholars, paradoxically, practical immigration law has little to do with actual immigration law.”
One of the points I develop, is that however extreme the 2014 OLC Opinion justifying DAPA was, it was moderate in comparison to the views of the Professoriate, who believed the President had the power to also grant deferred actions to the parents of the Dreamers. This was a bridge too far even for the Obama Administration–a point Charlie Savage makes eloquently in his book.
In my essay, I discuss how four law professors in particular urged the Obama Administration even further–this letter was not released to the public, but was leaked to NBC News.
Not cited in the lecture is a November 3, 2014 letter Motomura sent to President Obama, which was also signed by fellow law professors Shoba Sivaprasad Wadhia, Stephen Legomsky, and Michael Olivas.18 Consistent with his prior writings, he explicitly endorsed statutory and constitutional rationales that Congress practically does not matter.
The professors wrote to the President 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.”19 It makes no difference that, in the words of OLC, Congress had expressed a concern in the INA for “uniting the immediate families of individuals who have permanent legal ties to the United States.”20 Under the professors’ views, it was irrelevant if the individual had immediate family members—let alone dependents—who were citizens of LPRs. This was a bridge too far for the Obama Administration: “[e]xtending deferred action to the parents of DACA recipients would therefore expand family-based immigration relief in a manner that deviates in important respects from the immigration system Congress has enacted and the policies that system embodies.”21
The professors explained quite candidly that “any other criteria for deferred action or other exercises of prosecutorial discretion—are policy choices, not legal constraints.”22
However, the Obama Administration openly rebutted this professorial proffer, even over the objection of a law professor who was working within USCIS.
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.”29 Lucas Guttentag, who was on leave from Stanford Law School as Senior Counsel to U.S. Citizen and Immigration Services,30 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.”31 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.”32 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.”33 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.34
As Charlie Savage has explained, there were a number of things the Obama White House didn’t do, citing legal constraints. Not expanding deferred action to the parents of the Dreamers was a significant decision. (I still think the rest of DAPA is unconstitutional, but that is a different story).