Did Obama have authority for immigration action? Justice memo raises questions.
The secretary of Homeland Security and the counsel to the president (OLC) directed the Justice Department to investigate whether the president had the authority to take contemplated actions with regard to illegal immigrants via executive order. In a letter dated Nov. 19, they found he did not. On Nov. 20, he did it anyway.
for Politico ("White House releases immigration legal opinion"):
The most interesting aspect of the legal advice President Barack Obama got on the immigration executive action he announced Thursday night may be what lawyers told the president he could not or should not do.
A just hours before Obama spoke concluded that he doesn鈥檛 have the legal authority to offer broad deportation relief to parents of so-called Dreamers 鈥� people who came to the U.S. illegally as children and won a reprieve from deportation in a program known as DACA that Obama created in 2012.
鈥淎s 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,鈥� Justice Department attorney Karl Thompson wrote in the Office of Legal Counsel opinion.
The opinion also reveals, in a footnote, that Justice Department lawyers informally raised concerns about Obama鈥檚 initial 2012 DACA program before it was enacted.
Thompson鈥檚 legal memo about the new immigration initiatives warns the president against straying into areas untethered to policies or priorities Congress has set through legislation. 鈥淭he Executive cannot, under the guides of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences,鈥� Thompson wrote. 鈥淎n agency鈥檚 enforcement decisions should be consonant with, rather than contrary to, the congressional policy underlying the statutes the agency is charged with administering.鈥�
A senior administration official said Thursday lawyers concluded that actions like protection for parents of dreamers were 鈥渘ot legally available鈥� to the president, largely because it would be building one set of executive actions upon another.
On the one hand, kudos to the administration for promptly releasing the memo. The norm in situations where OLC presents adverse findings is to bury said findings for as long as possible. Releasing the full memo so quickly is the height of transparency and truly laudable.
It鈥檚 worth noting, too, that OLC 鈥� rightly in my view 鈥� found that the president does have the 鈥渁uthority to prioritize the removal of certain categories of aliens over others,鈥� particularly in light of inadequate funding to pursue the removal of all of them. But it specifically found that 鈥渢he proposed deferred action program for parents of DACA recipients would not be a permissible exercise of enforcement discretion鈥� precisely because it is not tethered to existing law. Pages 6 and 7 detail what seems a perfectly reasonable understanding of the law:
[T]he Executive cannot, under the guise of exercising enforcement discretion,听attempt to effectively rewrite the laws to match its policy preferences. See听id. at 833 (an agency may not 鈥渄isregard legislative direction in the statutory听scheme that [it] administers鈥�). In other words, an agency鈥檚 enforcement decisions听should be consonant with, rather than contrary to, the congressional policy听underlying the statutes the agency is charged with administering. Cf. Youngstown,听343 U.S. at 637 (Jackson, J., concurring) (鈥淲hen the President takes measures听incompatible with the expressed or implied will of Congress, his power is at its听lowest ebb.鈥�); Nat鈥檒 Ass鈥檔 of Home Builders v. Defenders of Wildlife, 551 U.S.听644, 658 (2007) (explaining that where Congress has given an agency the power to听administer a statutory scheme, a court will not vacate the agency鈥檚 decision about听the proper administration of the statute unless, among other things, the agency听鈥濃�榟as relied on factors which Congress had not intended it to consider'鈥� (quoting听Motor Vehicle Mfrs. Ass鈥檔 of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.听29, 43 (1983))).
Third, the Executive Branch ordinarily cannot, as the Court put it in Chaney, 鈥� 鈥榗onsciously and expressly adopt a general policy鈥� that is so extreme as to听amount to an abdication of its statutory responsibilities.鈥� 470 U.S. at 833 n.4听(quoting Adams v. Richardson, 480 F.2d 1159, 1162 (D.C. Cir. 1973) (en banc));听see id. (noting that in situations where an agency had adopted such an extreme听policy, 鈥渢he statute conferring authority on the agency might indicate that such听decisions were not 鈥榗ommitted to agency discretion鈥� 鈥�). Abdication of the duties听assigned to the agency by statute is ordinarily incompatible with the constitutional听obligation to faithfully execute the laws. But see, e.g., Presidential Authority to听Decline to Execute Unconstitutional Statutes, 18 Op. O.L.C. 199, 200 (1994)听(noting that under the Take Care Clause, 鈥渢he President is required to act in听accordance with the laws 鈥� including the Constitution, which takes precedence听over other forms of law鈥�).
On the other hand, it鈥檚 more than a little troubling that the president proceeded to issue the order anyway, contrary to not only the wishes of Congress and public opinion but the best legal advice available to him. As Mr. Gerson notes, the administration is operating on a different legal view than the professionals in the Justice Department:
However, that conclusion appears to have been based heavily on historical precedent as well as legal concerns. Officials said they consider Obama鈥檚 move to allow family members of U.S. citizens to receive protection from deportation to be very similar to previous moves by Presidents Ronald Reagan and George H.W. Bush, who also protected family members of individuals Congress had moved to allow to remain in the country legally.
鈥淲e were influenced by the fact that Congress already recognized the relationship between child citizens and parents as a relationship Congress wants to protect,鈥� said the senior official who spoke on condition of anonymity.. 鈥淭his was a sort of implementation of that Congressional policy as opposed to the parents of Dreamers, which would be鈥�.slightly different鈥e thought it was important to tie it to a Congressional policy.鈥�
The difference in the actions taken by Reagan and the elder Bush听and that taken by Obama听is that the former were implementing the clear intent of congressional law, protecting those who had fallen into the cracks of the legislation. In this case, Obama is essentially passing the DREAM Act by executive fiat.
Despite my generally supporting the DREAM Act, I find that outrageous. Indeed, as听noted in the comment thread of another post yesterday, I consider this action impeachable. Note that I鈥檓 not calling for the president鈥檚 impeachment. Aside from it being politically untenable, the fact that Obama鈥檚 action comes in the wake of decades of his predecessors stretching the Constitution beyond recognition makes it difficult to argue that the duly elected 鈥� twice 鈥� president should be removed from office for continuing a trend. But this nonetheless serves as a further and rather substantial weakening of the separation of powers.
Another president will, in the not too distant future, use this precedent to justify an action that supporters of Obama鈥檚 move will find outrageous. At that point, it鈥檒l be too late to complain.
Some of the commentary I鈥檝e seen on this blames congressional Republicans for forcing the president鈥檚 hand here. While they certainly deserve criticism for a lot of things, that notion doesn鈥檛 hold water. Specifically, multiple people have argued that all that needed to happen to have avoided Obama鈥檚 action was for House Republicans to pass the bill passed by the Senate. Indeed, the president himself said that in his speech. But that stands the Constitution on its head. We pass laws in this country when they鈥檙e passed by both Houses of Congress and signed by the president. The fact that the House is predisposed not to pass anything a Democratic president proposes听is frustrating; that doesn鈥檛 allow the president to simply enact said proposals by executive fiat.
UPDATE: Doug Mataconis correctly notes that, contrary to speculation ahead of the speech, 鈥渢he plan announced last night does not extend relief to the parents of DACA children.鈥� It nonetheless goes well beyond existing law. As described by the lead on the order,
Under Obama鈥檚 plan, undocumented parents of U.S. citizens and legal permanent residents would qualify only if they have lived in the country at least five years 鈥� since Jan. 1, 2010. The administration said it will be ready to begin taking applications in the spring, and that those who qualify will be granted three years of deportation relief, meaning they would be protected through the first year of Obama鈥檚 successor in 2017. It would be up to the new administration to determine whether to continue the program or eliminate it.
The new deportation protections are a year longer than they are under an existing Obama administration program, started in 2012 for younger immigrants, known as Deferred Action for Childhood Arrivals (DACA).
Officials said that the DACA program also would be revised to provide three years of relief and that they would change the date by which DACA applicants must have arrived in the United States from June 15, 2007, to Jan. 1, 2010, to conform with the program for parents.
Many of those who are granted administrative relief will be eligible to get Social Security numbers and work permits, officials said.
Administration officials also said the president鈥檚 new policies would create visas for immigrants who can show that they are investing economically in the United States and for workers in some high-tech fields.
I don鈥檛 see how this is anything other than Obama enacting essentially all of the DREAM Act by fiat.
UPDATE 2: , who served as acting solicitor general under President Clinton, cites the same memo and finds no problem with Obama鈥檚 decree.
[T]he idea that the immigration plan just announced by President Obama is a lawless power grab is absurd.听As the that was just released amply demonstrates, much of the advance criticism of the president鈥檚 action has been uninformed and unwarranted.听The opinion is well-reasoned and at times even conservative. The president is not acting unilaterally, but pursuant to his statutory authority.听Wide discretion over deportation priorities has long been conferred on the executive branch by Congress, and it is being exercised in this case consistent with policies such as family unification that have been endorsed by Congress.
Even though the action is breathtaking in scope, there is nothing legally remarkable about what the administration is doing, or the legal analysis supporting it.
[...]
As Eric Posner, who served in the Office of Legal Counsel under the first President Bush, , the president 鈥渋s just doing what countless Congresses have wanted him to do鈥� 鈥� setting priorities for deportation enforcement.
Let鈥檚 be clear about what the administration has not done in this opinion.听No one has been granted 鈥渁mnesty,鈥� either literally or functionally.听And no precedent has been set for this or any future president to act unilaterally in disregard of acts of Congress.听On the contrary, the legal opinion rejects a second proposed exercise of discretion 鈥� deferring deportation of the parents of 鈥淒reamers鈥� 鈥� that Justice concluded cannot be said to carry out priorities established by Congress.
But that doesn鈥檛 address the portions of the opinion that I鈥檝e quoted above. Obama is going well beyond simple discretion in taking action that Congress has ordered him to execute; he鈥檚 deciding to ignore portions of existing law and act as though an unpassed law had been passed. Mr. Dellinger continues:
In cases such as听 (1985), the听Supreme Court has repeatedly emphasized that where Congress has not provided guidelines for executive enforcement, the determination of enforcement priorities is within the 鈥渟pecial province of the Executive.鈥澨齌his is especially clear in the area of immigration.听As the court recently noted in听听(201w),听some of the discretionary deportation decisions the executive makes are appropriately based on general policy considerations, such as concerns implicating foreign affairs.
In approving the lawfulness of part of the proposed deferred action, the opinion released Thursday night from the Justice Department鈥檚 Office of Legal Counsel, or OLC, is careful to reaffirm that officials may not abdicate their statutory responsibilities.听In particular, the opinion states that Congress鈥檚 endorsement of certain deferred-action programs does not mean that such programs can be extended to any class of aliens.听The proposals were carefully vetted to ensure that the expansion of deferred action to the new categories was consonant with congressional policy.
But note that the portions of the OLC memo that I鈥檝e quoted are also based on Chaney and find the opposite of what Dellinger advocates. Regardless, he argues that they were likely overly cautious:
He听points us to a forthcoming posting by that has since posted. It鈥檚 extensive and mostly addresses hysterical arguments about 鈥渁mnesty鈥� and 鈥渕onarchy鈥� that I鈥檓 not making.听Germane to my concerns, however, he argues:
1.听 It鈥檚 not 鈥渦nilateral鈥� executive action.听 Yes, of course the President has acted without any new statutory enactment, and his initiative was made necessary only because of intransigence in the House that prevents a vote on more far-reaching immigration reform (see Point 9, below); nevertheless it is important to emphasize that the new DHS enforcement priorities and deferred action status policy are being promulgated听pursuant to statutorily delegated听discretion.听听 See especially pages 4-5 of the . 听And OLC鈥檚 ultimate conclusion is that the new initiative is 鈥�consonant with congressional policy embodied in the [Immigration and Nationality Act]鈥� (p. 24).听 On a first read, OLC鈥檚 analysis of the scope of DHS鈥檚 statutorily conferred discretion, and how it has historically been exercised, appears to be solid, careful, measured and (as explained below) limited. 听Whether or not OLC is correct in all of the particulars of its analysis, however 鈥� a question that, as mentioned above, I鈥檒l leave to others who have greater expertise than I do 鈥� the important point is this:听 What is at issue is simply a question of statutory interpretation, about the discretion that Congress has conferred upon the Secretary of DHS.
But, as I鈥檝e already noted, pages 6-7 put some rather strong caveats on that argument.
2.听 It鈥檚 not an example of constitutional 鈥渕onarchy,鈥� or a replay of Bush Administration claims of preclusive executive authority.听 Indeed, it鈥檚 not an exercise of constitutional 鈥渆xecutive power鈥� at all:听 The President and Secretary of DHS are not invoking any Article II authority, let alone an authority to override or disregard statutes.听 (The OLC opinion does say (p.4) that the discretion that Congress is presumed to have conferred upon the Executive is 鈥渞ooted鈥� in the President鈥檚 constitutional duty to take care that the law is faithfully executed:听 The point of invoking the 鈥淭ake Care鈥� Clause, however, is that implementing such enforcement priority decisions is听鈥渇aithful鈥� to the laws Congress has enacted.)
But the memo likewise concludes that much of the action contemplated and some of that taken goes beyond the 鈥淭ake Care鈥� discretionary authority.
3. 听It does not 鈥渃ut out Congress鈥� 鈥� indeed, it relies upon statutory authority.听 Nor does it contradict what Congress has prescribed.听 Neither the President nor the Secretary nor OLC has said anything to suggest that Congress could not, by statute, require a different enforcement scheme鈥攖o the contrary, OLC specifically acknowledges (pp. 4, 6) that Congress could legislate limits on enforcement discretion that the agency would be obliged to follow.听 Moreover, and of great significance, OLC specifically concludes that, because enforcement priority decisions must be 鈥渃onsonant with, rather than contrary to,鈥� Congress鈥檚 policy decisions as reflected in the governing statutes (pp. 5, 20), it would not be permissible for DHS to afford deferred action status to one category of aliens that the agency had proposed to cover (parents of children who have received deferred action status under the so-called 鈥淒ACA鈥� program): 听Offering deferred action status to such aliens, OLC opined, would be unlawful because it would 鈥渄eviate in important respects from the immigration system Congress has enacted and the policies that system embodies鈥� (p. 32).
But, again, this stands the Constitution on its head, arguing that the president can simply ignore large swaths of existing law unless Congress specifically passes a law 鈥� presumably, by a veto-proof supermajority 鈥� overturning his order.
Dellinger and Mr. Lederman are right on the larger point that presidents have carved out enormous discretionary power over the years and that the courts have allowed much of that to slide. That鈥檚 why I ultimately don鈥檛 support impeachment here. But I nonetheless believe Obama鈥檚 order has further weakened our system of checks and balances and, indeed, the rule of law.
James Joyner is editor of the Outside the Beltway blog at .听
