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Last week at the Federalist Society convention, a panel was held on the President’s duty to take care that the laws are faithfully executed with John Baker, Ron Cass, John Eastman, Chris Schroeder, Neal Devins, and moderated by Judge Griffith (CADC). Most of the discussion focused on the President’s ability to defer prosecutions of deportations. Sam Stein of the Huffington Post (who was sitting next to me by the only table in the Mayflower with a power outlet) reported “Legal Panel At Federalist Society Begrudgingly Accepts Obama’s Immigration Powers.”

This headline irked many members of the Federalist Society, but Sam accurately reported the event.

The talk was, well, lawyerly. Every conclusion seemed to have a qualification attached to it. But, by and large, the panelists agreed the president has wide legal latitude to prioritize and shape deportation laws, as regrettable for Republicans or the long-term balance of powers that may be.

My good friend John Baker made a very important point, which inspired an Op-Ed I wrote in today’s Los Angeles Times.

“If Congress wants to restrain the discretion of the president, they are supposed to do what the separation of powers encourages them to do: Write the statute tightly so that it will be actually administered the way you want it administered,” Baker said. “The reality is many members of Congress don’t care how it is administered until somebody squawks about it. They don’t read the statutes, so how do they know how it is going to be administered.”

As usual, John is exactly right on the structure of our Constitution. Throughout the 20th Century, Congress has shirked its duty to legislate and appropriate to maintain the separation of powers.

In my Op-Ed, which the LA Times titled “Obama’s overreach? Look in the mirror, Congress,” I write that Congress has itself to blame for this power grab–but not in the way you think. In short, I argue that OLC has found a way to justify the President’s expansion of prosecutorial discretion under existing precedents. The scary thing about this wide-ranging suspension of the law is that his view isn’t obviously wrong.

While Obama’s action represents a brazen expansion in the size and scope of executive authority, Congress shares in the blame for acquiescing to decades of presidential power grabs. In order to maintain the separation of powers, Congress must reassert its constitutional mandate to legislate and appropriate, rather than lazily passing a blank check to the White House.

And I’m not talking about the President’s warning to “pass a bill.” No. I mean Congress should start reasserting itself, through the power to legislate and the power to appropriate, to ensure the Executive cannot simply evade the law he doesn’t like through non-enforcement.

Here is the key analysis on immigration, where I peer through the smokescreen of prosecutorial discretion, and call it what it really is:

This brings us to President Obama’s immigration actions. Over the last 60 years, Congress has given the president virtually unlimited authority over immigration enforcement, and then it has stood back and acquiesced as one chief executive after another continued exempting groups from the naturalization laws, with no repercussions. When Congress refused to pass the Dream Act in 2011, which would have provided a path to citizenship for 1 million young people brought here unlawfully as minors, the president indefinitely deferred their deportation. Congress did nothing in response. Now, after Congress refused to pass further immigration reform, the president is deferring the deportation of 4 million undocumented immigrants who are the parents of American citizens.

The president argues, not unreasonably, that with limited resources appropriated by Congress, he can only deport 4% of those subject to deportation. But that argument only goes so far. After he tried and failed to pass new laws, it is fairly transparent what is really going on with his new “priorities.” Under the guise of allocating limited resources, he has found a shortcut around Congress.

And, as we saw in Noel Canning, and Youngstown before, the President can aggrandize powers when the Legislature does not check it.

When Congress fails to check the other branches, the executive, acting alone, aggrandizes the legislative power from generation to generation. Justice Antonin Scalia reminded us recently that “in any controversy between the political branches over a separation-of-powers question, staking out a position and defending it over time is far easier for the Executive Branch than for the Legislative Branch.” Or, as Justice Felix Frankfurter eloquently warned in the landmark 1952 separation-of-powers case, Youngstown Sheet & Tube Co. vs. Sawyer, “The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.”

What’s my prescription for this constitutional ailment? Congress should do its job, and check the President, rather than being lazy.

When the new session of Congress begins, and members express outrage that the president’s discretion has allowed him to thwart the rule of law, they need to look into their own chambers and realize that the fault lies in themselves. As James Madison recognized in Federalist No. 51, “Ambition must be made to counteract ambition.” Congress must stop shirking its responsibility, and reclaim the legislative mantle. Through the power of the purse, and the drafting of precise laws, it can steer the separation of powers back to their proper constitutional moorings.

I hope my invocation of James Madison does not set Southern California into a tizzy, and trigger aftershocks of liberty along the San Andreas fault.

The article I wrote over the summer, Gridlock and Executive Power, needs to be significantly refreshed. I think I will turn it into (at least) two law review articles, with the goal of transforming it into a book project on the historical relationship between Congress and Presidents with respect to executive evasions.

I have now had time to read the OLC memo on the President’s immigration policy, and excerpted key segments here. There are number of fascinating insights in this 33-page document.

First, we learn that the President did not obtain an OLC memo for his 2012 DACA program. Rather, only oral advice was given. We also learn that OLC limited DACA, and explained that the deferred action could not be given as a class. Rather it must be given on a case-by-case basis.

Before DACA was announced, our Office was consulted about whether such a program would be legally permissible. As we orally advised, our preliminary view was that such a program would be permissible, provided that immigration officials retained discretion to evaluate each application on an individualized basis. We noted that immigration officials typically consider factors such as having been brought to the United States as a child in exercising their discretion to grant deferred action in individual cases. We explained, however, that extending deferred action to individuals who satisfied these and other specified criteria on a class-wide basis would raise distinct questions not implicated by ad hoc grants of deferred action.We advised that it was critical that, like past policies that made deferred action available to certain classes of aliens, the DACA program require immigration officials to evaluate each application for deferred action on a case-by-case basis, rather than granting deferred action automatically to all applicants who satisfied the threshold eligibility criteria.We also noted that, although the proposed program was predicated on humanitarian concerns that appeared less particular- ized and acute than those underlying certain prior class-wide deferred action programs, the concerns animating DACA were nonetheless consistent with the types of concerns that have customarily guided the exercise of immigration enforcement discretion.

This case-by-case standard is derived from precedents following Heckler v. Chaney.

Finally, lower courts, following Chaney, have indicated that non-enforcement decisions are most comfortably characterized as judicially unreviewable exercises of enforcement discretion when they are made on a case-by-case basis. See, e.g., Kenney v. Glickman, 96 F.3d 1118, 1123 (8th Cir. 1996); Crowley Caribbean Transp., Inc. v. Peña, 37 F.3d 671, 676–77 (D.C. Cir. 1994). That reading of Chaney reflects a conclusion that case-by-case enforcement decisions generally avoid the concerns mentioned above. Courts have noted that “single-shot non- enforcement decisions” almost inevitably rest on “the sort of mingled assessments of fact, policy, and law . . . that are, as Chaney recognizes, peculiarly within the agency’s expertise and discretion.” Crowley Caribbean Transp., 37 F.3d at 676– 77 (emphasis omitted). Individual enforcement decisions made on the basis of case-specific factors are also unlikely to constitute “general polic[ies] that [are] so extreme as to amount to an abdication of [the agency’s] statutory responsibilities.” Id. at 677 (quoting Chaney, 477 U.S. at 833 n.4). That does not mean that all “general policies” respecting non-enforcement are categorically forbidden: Some “general policies” may, for example, merely provide a framework for making individualized, discretionary assessments about whether to initiate enforcement actions in particular cases. Cf. Reno v. Flores, 507 U.S. 292, 313 (1993) (explain- ing that an agency’s use of “reasonable presumptions and generic rules” is not incompatible with a requirement to make individualized determinations). But a general policy of non-enforcement that forecloses the exercise of case-by-case discretion poses “special risks” that the agency has exceeded the bounds of its enforcement discretion. Crowley Caribbean Transp., 37 F.3d at 677.

DOJ draws the line at an “abdication.”

Further, although the proposed policy is not a “single-shot non-enforcement decision,” neither does it amount to an abdication of DHS’s statutory responsibili- ties, or constitute a legislative rule overriding the commands of the substantive statute. Crowley Caribbean Transp., 37 F.3d at 676–77. The proposed policy provides a general framework for exercising enforcement discretion in individual cases, rather than establishing an absolute, inflexible policy of not enforcing the immigration laws in certain categories of cases.

Finally, we have proof that the DOJ OLC placed limits on Obama’s executive power–and he listened, unlike with Libya! (I had been wondering about this for some time).

My one caveat–and I need to study this closer–is whether there is a functional difference where a case-by-case analysis yields a 99% grant rate. If the review becomes something of a rubber stamp, the Heckler standard would not kick in.

Second, based on this initial device, the OLC memo makes a very strong effort at crafting a line between prosecutorial discretion and abuse of discretion. While there are many citations to Hackler v. Chaney, the argument boils down to this point: when deferrals must be made on a case-by-case basis, this does not amount to an abdication of enforcing the law, and a transformation into rewriting the law. This point is made several times but here is a clear restatement:

Immigration officials cannot abdicate their statutory responsibilities under the guise of exercising enforcement discretion. See supra p. 7 (citing Chaney, 470 U.S. at 833 n.4). And any new deferred action program should leave room for individualized evaluation of whether a particular case warrants the expenditure of resources for enforcement. …

The fact that the proposed program would defer the removal of a subset of these removable aliens—a subset that ranks near the bottom of the list of the agency’s removal priorities—thus does not, by itself, demonstrate that the program amounts to an abdication of DHS’s responsibilities. …

This feature of the proposed program ensures that it does not create a categorical entitlement to deferred action that could raise concerns that DHS is either impermissibly attempting to rewrite or categorically declining to enforce the law with respect to a particular group of undocumented aliens.

Third, the memo explains that deferring deportations of parents of U.S. Citizens or Lawfully Present Residents is permissible, because there is a path to citizenship for the parents, through the kids.

And in 1990, INS implemented a “Family Fairness” program that authorized granting extended voluntary departure and work authorization to the estimated 1.5 million spouses and children of aliens who had been granted legal status under the Immigration Reform and Control Act of 1986, Pub. L. No. 99- 603, 100 Stat. 3359 (“IRCA”). See Memorandum for Regional Commissioners, INS, from Gene McNary, Commissioner, INS, Re: Family Fairness: Guidelines for Voluntary Departure under 8 CFR 242.5 for the Ineligible Spouses and Children of Legalized Aliens (Feb. 2, 1990) (“Family Fairness Memorandum”); see also CRS Immigration Report at 10.

This is the argument I made concerning President George H.W. Bush’s deferrals. They are effectively temporary stopgap measures to prevent splitting up families where the parents will eventually have a pathway to citizenship.

The key difference between George H.W. Bush’s deferrals, and this one, is that these may last as long as 21 years, as children have to wait till they turn 21 to petition for visas for their parents. The H.W. Bush deferrals lasted maybe two years. But still, the legal principle behind the G.W. Bush deferrals extends here.

Finally, the proposed deferred action program would resemble in material respects the kinds of deferred action programs Congress has implicitly approved in the past, which provides some indication that the proposal is consonant not only with interests reflected in immigration law as a general matter, but also with congressional understandings about the permissible uses of deferred action. As noted above, the program uses deferred action as an interim measure for a group of aliens to whom Congress has given a prospective entitlement to lawful immi- gration status. While Congress has provided a path to lawful status for the parents of U.S. citizens and LPRs, the process of obtaining that status “takes time.” Cuellar de Osorio, 134 S. Ct. at 2199. The proposed program would provide a mechanism for families to remain together, depending on their circumstances, for some or all of the intervening period.

Parents of U.S. Citizens will generally have to wait till the child is 21.

The INA provides a path to lawful status for the parents, as well as other immedi- ate relatives, of U.S. citizens: U.S. citizens aged twenty-one or over may petition for parents to obtain visas that would permit them to enter and permanently reside in the United States, and there is no limit on the overall number of such petitions that may be granted. See 8 U.S.C. § 1151(b)(2)(A)(i); see also Cuellar de Osorio, 134 S. Ct. at 2197–99 (describing the process for obtaining a family-based immigrant visa).

Fourth, the memo makes clear that the parents of the DACA recipients are not eligible for deferrals due to the very important reason I noted yesterday–they do not have a pathway to citizenship. Therefore, this would not be a temporary gap.

But the proposed program for parents of DACA recipients is unlike the pro- posed program for parents of U.S. citizens and LPRs in two critical respects. First, although DHS justifies the proposed program in large part based on considerations of family unity, the parents of DACA recipients are differently situated from the parents of U.S. citizens and LPRs under the family-related provisions of the immigration law. …

Granting deferred action to the parents of DACA recipients would not operate as an interim measure for individuals to whom Congress has given a prospective entitlement to lawful status. Such parents have no special prospect of obtaining visas, since Congress has not enabled them to self-petition—as it has for VAWA self-petitioners and individuals eligible for T or U visas—or enabled their undocumented children to petition for visas on their behalf. Nor would granting deferred action to parents of DACA recipients, at least in the absence of other factors, serve interests that are comparable to those that have prompted implemen- tation of deferred action programs in the past. Family unity is, as we have discussed, a significant humanitarian concern that underlies many provisions of the INA.

This is exactly right. In the absence of a pathway to citizenship, the deferrals do not make sense.

Fifth, the memo address whether size matters. In effect, addressing whether this unprecedented expansion of power is lawful. First, it concedes that the size of the program exceeds that of any previous deferred action. This is correct, and rebuts the cable news talking point that this is perfectly consistent with what H.W. Bush did.

We recognize that the proposed program would likely differ in size from these prior deferred action programs. Although DHS has indicated that there is no reliable way to know how many eligible aliens would actually apply for or would be likely to receive deferred action following individualized consideration under the proposed program, it has informed us that approximately 4 million individuals could be eligible to apply. See Shahoulian E-mail. We have thus considered whether the size of the program alone sets it at odds with congressional policy or the Executive’s duties under the Take Care Clause.

In short, they argue that because a number cannot be easily drawn, they will not.

In the absence of express statutory guidance, it is difficult to say exactly how the program’s potential size bears on its permissibility as an exercise of executive enforcement discretion. But because the size of DHS’s proposed program corresponds to the size of a popula- tion to which Congress has granted a prospective entitlement to lawful status without numerical restriction, it seems to us difficult to sustain an argument, based on numbers alone, that DHS’s proposal to grant a limited form of administrative relief as a temporary interim measure exceeds its enforcement discretion under the INA.

Next, they try to put the number in context, explaining that H.W. Bush’s 1.5 million was a greater percentage of unlawful immigrants at the time.

Furthermore, while the potential size of the program is large, it is neverthe- less only a fraction of the approximately 11 million undocumented aliens who remain in the United States each year because DHS lacks the resources to remove them; and, as we have indicated, the program is limited to individuals who would be unlikely to be removed under DHS’s proposed prioritization policy. There is thus little practical danger that the program, simply by virtue of its size, will impede removals that would otherwise occur in its absence. And although we are aware of no prior exercises of deferred action of the size contemplated here, INS’s 1990 Family Fairness policy, which Congress later implicitly approved, made a comparable fraction of undocumented aliens—approximately four in ten— potentially eligible for discretionary extended voluntary departure relief. Compare CRS Immigration Report at 22 (estimating the Family Fairness policy extended to 1.5 million undocumented aliens), with Office of Policy and Planning, INS, Estimates of the Unauthorized Immigrant Population Residing in the United States: 1990 to 2000 at 10 (2003) (estimating an undocumented alien population of 3.5 million in 1990); see supra notes 5 & 15 (discussing extended voluntary departure and Congress’s implicit approval of the Family Fairness policy). This suggests that DHS’s proposed deferred action program is not, simply by virtue of its relative size, inconsistent with what Congress has previously considered a permissible exercise of enforcement discretion in the immigration context.

I pause to note that this is a remarkable limitation imposed by OLC on the President’s power. I am very glad to see this actually exists. Though, it seems that DHS was okay with this authority.

Sixth, the memo repeats at several points a discussion of acquiescence. Congress has acquiesced to the President’s deferred action, and given the Executive a de facto license of sorts to proceed.

Congress has long been aware of the practice of granting deferred action, in- cluding in its categorical variety, and of its salient features; and it has never acted to disapprove or limit the practice.9 On the contrary, it has enacted several pieces of legislation that have either assumed that deferred action would be available in certain circumstances, or expressly directed that deferred action be extended to certain categories of aliens.

It specifically makes a Dames & Moore argument concerning acquiescence:

Apart from the considerations just discussed, perhaps the clearest indication that these features of deferred action programs are not per se impermissible is the fact that Congress, aware of these features, has repeatedly enacted legislation appearing to endorse such programs. As discussed above, Congress has not only directed that certain classes of aliens be made eligible for deferred action pro- grams—and in at least one instance, in the case of VAWA beneficiaries, directed the expansion of an existing program—but also ranked evidence of approved deferred action status as evidence of “lawful status” for purposes of the REAL ID Act. These enactments strongly suggest that when DHS in the past has decided to grant deferred action to an individual or class of individuals, it has been acting in a manner consistent with congressional policy “‘rather than embarking on a frolic of its own.’” United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 139 (1985) (quoting Red Lion Broad. Co. v. FCC, 395 U.S. 367, 375 (1969)); cf. id. at 137–39 (concluding that Congress acquiesced in an agency’s assertion of regulato- ry authority by “refus[ing] . . . to overrule” the agency’s view after it was specifi- cally “brought to Congress’[s] attention,” and further finding implicit congression- al approval in legislation that appeared to acknowledge the regulatory authority in question); Dames & Moore v. Regan, 453 U.S. 654, 680 (1981) (finding that Congress “implicitly approved the practice of claim settlement by executive agreement” by enacting the International Claims Settlement Act of 1949, which “create[d] a procedure to implement” those very agreements).

Seventh, in perhaps an indirect reference to attempts to defund the program, the memo notes that the action would be “borne almost entirely” by application fees–something Congress arguably cannot touch. I don’t think this point was inadvertent, as there are already debates about whether program can be defunded.

The deferred action program DHS proposes would not, of course, be costless. Processing applications for deferred action and its renewal requires manpower and resources. See Arizona, 132 S. Ct. at 2521 (Scalia, J., concurring in part and dissenting in part). But DHS has informed us that the costs of administering the proposed program would be borne almost entirely by USCIS through the collec- tion of application fees. See Shahoulian E-mail; see also 8 U.S.C. § 1356(m); 8 C.F.R. § 103.7(b)(1)(i)(C), (b)(1)(i)(HH). DHS has indicated that the costs of administering the deferred action program would therefore not detract in any significant way from the resources available to ICE and CBP—the enforcement arms of DHS—which rely on money appropriated by Congress to fund their operations. See Shahoulian E-mail. DHS has explained that, if anything, the proposed deferred action program might increase ICE’s and CBP’s efficiency by in effect using USCIS’s fee-funded resources to enable those enforcement divisions to more easily identify non-priority aliens and focus their resources on pursuing aliens who are strong candidates for removal. See id. The proposed program, in short, might help DHS address its severe resource limitations, and at the very least likely would not exacerbate them. See id.

Eighth, as for the line-drawing issue, the memo seems to acknowledge that Youngstown controls, and that executive discretion cannot be absolute.

Immigration officials’ discretion in enforcing the laws is not, however, unlimited. Limits on enforcement discretion are both implicit in, and fundamental to, the Constitution’s allocation of governmental powers between the two political branches. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587– 88 (1952). These limits, however, are not clearly defined. The open-ended nature of the inquiry under the Take Care Clause—whether a particular exercise of discretion is “faithful[]” to the law enacted by Congress—does not lend itself easily to the application of set formulas or bright-line rules.

The memo by Principal Deputy Assistant Attorney General Karl L. Thompson is available here. I’ll update the post as I read it. For now, here is the introduction and conclusion.

You have asked two questions concerning the scope of the Department of Homeland Security’s discretion to enforce the immigration laws. First, you have asked whether, in light of the limited resources available to the Department (“DHS”) to remove aliens unlawfully present in the United States, it would be legally permissible for the Department to implement a policy prioritizing the removal of certain categories of aliens over others. DHS has explained that although there are approximately 11.3 million undocumented aliens in the country, it has the resources to remove fewer than 400,000 such aliens each year. DHS’s proposed policy would prioritize the removal of aliens who present threats to national security, public safety, or border security. Under the proposed policy, DHS officials could remove an alien who did not fall into one of these categories provided that an Immigration and Customs Enforcement (“ICE”) Field Office Director determined that “removing such an alien would serve an important federal interest.” Draft Memorandum for Thomas S. Winkowski, Acting Director, ICE, et al., from Jeh Charles Johnson, Secretary of Homeland Security, Re: Policies for the Apprehension, Detention, and Removal of Undocumented Immigrants at 5 (Nov. 17, 2014) (“Johnson Prioritization Memorandum”).

Second, you have asked whether it would be permissible for DHS to extend deferred action, a form of temporary administrative relief from removal, to certain aliens who are the parents of children who are present in the United States. Specifically, DHS has proposed to implement a program under which an alien could apply for, and would be eligible to receive, deferred action if he or she is not a DHS removal priority under the policy described above; has continuously resided in the United States since before January 1, 2010; has a child who is either a U.S. citizen or a lawful permanent resident; is physically present in the United States both when DHS announces its program and at the time of application for deferred action; and presents “no other factors that, in the exercise of discretion, make[] the grant of deferred action inappropriate.” Draft Memorandum for Leon Rodriguez, Director, U.S. Citizenship and Immigration Services, et al., from Jeh Charles Johnson, Secretary of Homeland Security, Re: Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and Others at 4 (Nov. 17, 2014) (“Johnson Deferred Action Memorandum”). You have also asked whether DHS could implement a similar program for parents of individuals who have received deferred action under the Deferred Action for Childhood Arrivals (“DACA”) program.

As has historically been true of deferred action, these proposed deferred action programs would not “legalize” any aliens who are unlawfully present in the United States: Deferred action does not confer any lawful immigration status, nor does it provide a path to obtaining permanent residence or citizenship. Grants of deferred action under the proposed programs would, rather, represent DHS’s decision not to seek an alien’s removal for a prescribed period of time. See generally Reno v. Am.-Arab Anti-Discrim. Comm., 525 U.S. 471, 483–84 (1999) (describing deferred action). Under decades-old regulations promulgated pursuant to authority delegated by Congress, see 8 U.S.C. §§ 1103(a)(3), 1324a(h)(3), aliens who are granted deferred action—like certain other categories of aliens who do not have lawful immigration status, such as asylum applicants—may apply for authoriza- tion to work in the United States in certain circumstances, 8C.F.R. § 274a.12(c)(14) (providing that deferred action recipients may apply for work authorization if they can show an “economic necessity for employment”); see also 8 C.F.R. § 109.1(b)(7) (1982). Under DHS policy guidance, a grant of deferred action also suspends an alien’s accrual of unlawful presence for purposes of 8 U.S.C. § 1182(a)(9)(B)(i) and (a)(9)(C)(i)(I), provisions that restrict the admission of aliens who have departed the United States after having been unlawfully present for specified periods of time. A grant of deferred action under the proposed programs would remain in effect for three years, subject to renewal, and could be terminated at any time at DHS’s discretion. See Johnson Deferred Action Memorandum at 2, 5.

For the reasons discussed below, we conclude that DHS’s proposed prioritiza- tion policy and its proposed deferred action program for parents of U.S. citizens and lawful permanent residents would be permissible exercises of DHS’s discre- tion to enforce the immigration laws. We further conclude that, as it has been described to us, the proposed deferred action program for parents of DACA recipients would not be a permissible exercise of enforcement discretion.

In sum, for the reasons set forth above, we conclude that DHS’s proposed prioritization policy and its proposed deferred action program for parents of U.S. citizens and lawful permanent residents would be legally permissible, but that the proposed deferred action program for parents of DACA recipients would not be permissible.

Tonight, I appeared on the PBS News Hour to debate the constitutionality of President Obama’s executive action on immigration. Here is the video.

I would like to focus on a few of my comments, and elaborate them.

First, I tried to rebut the discussion that President George H.W. Bush’s deferral of 1.5 million sets a precedent for President Obama. As I noted in the NYT Room for Debate, and in a piece that I’ll post later, the positions are worlds apart:

So the president has a duty to take care of the law and to faithfully execute it.

So, while he does have discretion, I don’t agree that it’s absolute. I think the important point to make is, this goes far beyond what has been done before. It’s unprecedented. Frank mentioned that George H.W. Bush granted deferrals for 1.5 million. I think the key fact to remember is, these are people who are related to those being naturalized by the immigration laws.

So, it’s simply not the case. Here, President Obama imposed DACA for the dreamers. And now he’s going to add five million, six million more. None of these people under statutory law have any pathway to citizenship. This is really different than what was done before.

More precisely, all of the people H.W. Bush deferred had a path to citizenship (however long and arduous) through a naturalized spouse or parent. Deporting these people made little sense. In sharp contrast, the bulk of the people President Obama is deferring have no similar path.

Second, I explained that even though there is no formal amnesty (this is a huge misnomer), future presidents will effectively be estopped from taking any action against these five million:

Well, no, it’s not granting amnesty. You’re not giving them citizenship.

But what you are doing is giving them a legal status and working papers. What this does is make them effectively untouchable by future presidents. So, though in effect there’s no legal status, it makes it very difficult for any future presidents to take them out of that status.

So the president is giving the next person in office this situation to deal with.

Third, I repeated my call to see the DOJ OLC memos prior to this action:

So, I think the way we have to look at this is, what changed?

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.

Fourth, in the part that got Gwen Ifill’s attention the most, I posited what a President Ted Cruz or Rand Paul could do with such power.

GWEN IFILL: Is part of your concern that the people who will now be given this temporary protection will also be on a path to citizenship?

JOSH BLACKMAN: Well, I think the bigger issue is what this means for future presidents.

So, if I can indulge for a second, 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. The president’s ability to suspend the laws and not enforce them raises serious implications.

I want to see what the legal implications are. Where are the limits of the ability of the president to not enforce the laws? I want to see, what are the memoranda making that point?

Ifill seemed concerned about how these rogue Republicans may govern, so she posed the question to Frank Sharry:

GWEN IFILL: But Josh Blackman makes the point, what if it’s something you don’t agree with that the president decides to do?

He smirked, and dodged the question, calling it a “smokescreen.”

Fifth, I veered into the politics, and stated the painfully obvious.

Well, simply because the president doesn’t get what he wants doesn’t mean he can do it anyway. We had an election. His party didn’t do very well. He had legislation. It didn’t go anywhere. He lost.

And sometimes, when you’re a politician, you have to take your losses and go home, despite the humanitarian concerns which I think are significant and Frank make valid points. You don’t get to do what you want when don’t have the votes in Congress. And each time the president has been in office, every successive elections, he has lost seats.

And now in his lame-duck session, when the Congress is about to begin its last term, he’s doing it now, when there are more elections to hold accountable. So I really think the fact that the president cited this gridlock in Washington as a justification for his executive actions is really a misnomer. He doesn’t have the power and he is choosing to do it anyway.

Sixth, I closed with my most important constitutional point I make in Gridlock and Executive Power–gridlock is part of our constitutional order.

Until the Congress is willing to approach and make a compromise, there’s nothing that can be done. And, frankly, that’s how our system works. Right? Our Constitution is not designed to be efficient. Gridlock is part of our constitutional order. For better or worse, we have checks and balances for a reason.

I paraphrased Justice Scalia’s opinion in Noel Canning, where he explained that “efficiency” is not part of our framework, and Gridlock is “not a bug to be fixed . . . but a calculated feature of the constitutional framework.”  Here they are in meme forms.

I am really glad I got this point in. It was really tough to quote Nino verbatim on the fly, but this was close enough. (Giving this lecture a dozen times this semester has drilled the points into my head).

As an aside, this is a fraught topic with a lot of emotion, for very good reasons. I agreed with Frank’s discussion of the “humanitarian concerns” at issue here. As a matter of policy, I am very sympathetic to what President Obama is attempting to do, and support the legislation that stalled in Congress. But far more important than my policy preferences are the separation of powers. These checks agree for reasons far greater than any policy debates of the day.

As another aside, I lead off sentences with the words “so” and “well” way too often. I’ve noticed that before, but having my remarks transcribes really brings it into focus. I will try to cut down on those crutches.

As a final aside, here are some photos from the episode.

And with the green screen:

I am not athletic. I never fathomed that anything I would ever do could possibly be featured on ESPN. But it has happened. FiveThirtyEight has a detailed profile on Supreme Court prediction making, FantasySCOTUS, {Marshall}+, and our three-time reigning champion Jacob Berlove.

On FantasySCOTUS:

Blackman also launched the website FantasySCOTUS in 2009 — as a joke. Like fantasy sports, human players log on, pick justices to vote this way or that, and score points once the decisions come down. To Blackman’s surprise, it took off, and thousands of people now participate.

The real promise of FantasySCOTUS isn’t entertainment, but prediction. Like the Iowa Electronic Markets, or the sadly defunct Intrade, FantasySCOTUS can harness the wisdom of the crowd — incentivizing its participants to make accurate predictions, and then observing those decisions in the aggregate. This year there is a $10,000 first prize put up by the media firm Thomson Reuters.

“I had no idea whether it’d be accurate or not — I did this entirely on a whim. And then by the end of the year I found out that this is actually pretty good,” Blackman said. The serious FantasySCOTUS players generate predictions cracking 70 percent accuracy.

 

On {Marshall}+:

Josh Blackman, a professor at South Texas College of Law, has recently taken up the predicting mantle. Blackman and his partners, Michael Bommarito and Daniel Martin Katz, have built a second-generation computer model, called {Marshall}+, after former Chief Justice John Marshall. While it may be slightly less accurate than the Martin-Quinn model, it’s far more robust. It’s built on data going back more than 60 years, and doesn’t rely on a given composition of the court, as the Martin-Quinn model did. The model goes beyond Martin’s and Quinn’s classification trees, employing what the authors call a “random forest approach.” They can even “time travel,” testing their model on historical cases, using only the information they would have had at the time. It correctly predicts 70 percent of cases since 1953. And it’s public — the source code for {Marshall}+ is available on GitHub.

While the model has impressed many, Blackman still believes in human reasoning. “We expect the humans to win, they’re better,” he told me. “This is not like ‘The Terminator’ where machines will rise.”

On our accuracy:

“I had no idea whether it’d be accurate or not — I did this entirely on a whim. And then by the end of the year I found out that this is actually pretty good,” Blackman said. The serious FantasySCOTUS players generate predictions cracking 70 percent accuracy.

Blackman is excited to find out what sort of cases the humans are good at predicting, and what sort the machines are good at. With that information, he can begin to craft an “ensemble” prediction, using the best of both worlds. …

Machine predictors are bound to improve. Blackman hopes to host a machine competition next year, encouraging others to work off {Marshall}+and develop their own, better algorithms that can crack 70 percent. And in the long run, the real impact of this work may not have much at all to do with the Supreme Court. With an accurate algorithm in hand, predictions could be generated for the tens of thousands of cases argued every year in lower courts.

“There are roughly 80 cases argued in the Supreme Court every year. That’s a drop in the bucket,” Blackman said.

This could have dramatic, efficiency-boosting effects. Lawyers could better decide when to go to trial, when to settle and how to settle, for example. But there’s a long way to go.

 

 

On Chief Justice Jacob Berlove:

So there are the scholars and the machines and the crowd. Composing the crowd are the hobbyists — the intrepid, rugged individualists of the predicting world.

Jacob Berlove, 30, of Queens, is the best human Supreme Court predictor in the world. Actually, forget the qualifier. He’s the best Supreme Court predictor in the world. He won FantasySCOTUS three years running. He correctly predicts cases more than 80 percent of the time. He plays under the name “Melech” — “king” in Hebrew.

Berlove has no formal legal training. Nor does he use statistical analyses to aid his predictions. He got interested in the Supreme Court in elementary school, reading his local paper, the Cincinnati Enquirer. In high school, he stumbled upon a constitutional law textbook.

“I read through huge chunks of it and I had a great time,” he told me. “I learned a lot over that weekend.”

Berlove has a prodigious memory for justices’ past decisions and opinions, and relies heavily on their colloquies in oral arguments. When we spoke, he had strong feelings about certain justices’ oratorical styles and how they affected his predictions.

Some justices are easy to predict. “I really appreciate Justice Scalia’s candor,” he said. “In oral arguments, 90 percent of the time he makes it very clear what he is thinking.”

Some are not. “To some extent, Justice Thomas might be the hardest, because he never speaks in oral arguments, ever.”¹ That fact is mitigated, though, by Thomas’s rather predictable ideology. Justices Kennedy and Breyer can be tricky, too. Kennedy doesn’t tip his hand too much in oral arguments. And Breyer, Berlove says, plays coy.

“He expresses this deep-seated, what I would argue is a phony humility at oral arguments. ‘No, I really don’t know. This is a difficult question. I have to think about it. It’s very close.’ And then all of sudden he writes the opinion and he makes it seem like it was never a question in the first place. I find that to be very annoying.”

I told Ruger about Berlove. He said it made a certain amount of sense that the best Supreme Court predictor in the world should be some random guy in Queens.

“It’s possible that too much thinking or knowledge about the law could hurt you. If you make your career writing law review articles, like we do, you come up with your own normative baggage and your own preconceptions,” Ruger said. “We can’t be as dispassionate as this guy.”

Berlove also referenced the current supremacy of the best humans over the machines. “There’ll probably be a few top-notch players up there who can do better” than the computer model, he said. But he added, “With time, they might be able to do what they did to Garry Kasparov, or what they did to Ken Jennings,” referring to IBM’s Deep Blue and Watson supercomputers.