Tonight, President Obama announced sweeping administrative reform of immigration law. His efforts raise important questions about the legal basis for his actions and its implications for the future of immigration law and the separation of powers.
Over the next several days, we will convene an online symposium here, on Balkinization, to discuss and debate these issues with a group of leading immigration law and constitutional law scholars and litigators. While much ink has been spilled in recent months over the legality of administrative immigration relief, much of that writing has been necessarily speculative. Now we know the basic facts. The President’s administration will exercise prosecutorial discretion to defer the removal of many parents of U.S. citizens and lawful permanent residents, making them eligible for work authorization for up to three years at a time. This action is estimated to encompass 3.3 million unauthorized immigrants. When combined with the last round of administrative relief—the Deferred Action for Childhood Arrivals Initiative—roughly 5 million persons, or 40 percent of the unauthorized population, may be affected.
As the President’s announcement made clear, however, there will be limits to his exercise of discretion. The parents of DACA recipients will not be included. This is an extremely important fact—not just as a political matter, but also, potentially, as a legal one. Over the course of recent debate, writers on all sides of the issue have struggled mightily to avoid a central question about the exercise of prosecutorial discretion in immigration law: how far is too far? Opponents have argued that the president has crossed the line into unconstitutionality; defenders have contended that he has not. But almost no one has been willing to say where that line is located. Tonight that changed. An opinion from the Office of Legal Counsel, made public by the administration, lays out the legal basis for the President’s actions and provides scholars with new theories of executive power and prosecutorial discretion to explore. Importantly, that opinion concludes that, while the President has authority to grant relief to the parents of US citizens and LPRs, the President lacks legal authority to grant such relief to the parents of DACA recipients.
We are among those who believe the basic parameters of executive discretion in immigration law permit the President to take the steps he has. But the OLC opinion raises important questions about the limits of discretion, as well as a new gloss on the legal issues—the legal claim that the President’s actions are consistent with congressional priorities as reflected in the Immigration and Nationality Act.
The combination of the President’s sweeping action with an official government defense of the program’s legality—something that did not accompany DACA—makes now a crucial moment to discuss two fundamental questions that have long been embedded in the debate over administrative relief. First, the question of scope: of how the size and composition of the group offered administrative relief bears on relief’s legality. Second, the question of how the form of relief—that is, the precise benefits that are conferred through administrative action—affect its legality?
These and other questions will be ones that we and the other symposium participants will engage and debate in the coming days.
Throughout this week, individuals and organizations around the country observe Transgender Awareness Week to help raise the visibility of transgender and gender non-conforming people and to address the issues these communities face. As part of that effort, ACS has released a new Issue Brief, “The Transgender Tipping Point: An Overview for the Advocate,” in which Dr. Jillian T. Weiss surveys the laws affecting the transgender community and offers guidance to advocates who seek to expand the legal protections provided to transgender people.
There are approximately 700,000 transgender people in the United States, but until very recently they have been considered strangers to the law. For decades, courts consistently denied protections against discrimination for transgender people. It was not until 1989, in the case of Price Waterhouse v. Hopkins, that the U.S. Supreme Court acknowledged that gender stereotyping constitutes unlawful sex discrimination. Since then, advocates have used laws prohibiting sex discrimination to protect people against discrimination based on transgender status, and courts have slowly become receptive to such cases.
More recently, cities, states and the federal government have begun to explicitly protect transgender people against discrimination in the areas of employment, education, housing, health care and marriage, among others. Laws that once prohibited discrimination based on sex, race or religion have been amended to protect against discrimination based on sexual orientation and gender identity or expression.
Simon Lazarus argues at The New Republic that supporters of the Affordable Care Act are inadvertently recycling conservative arguments when defending the healthcare law against the latest legal challenge.
At The Economist’s Democracy in America blog, Steve Mazie considers empathy on the Supreme Court. He argues that their “small and privileged” circles limit their perspectives.
Stephanie Mencimer discusses the Alabama redistricting cases for Mother Jones, arguing that the state that helped gut the Voting Rights Act is now using it to justify racial gerrymandering.
Oliver Roeder of FiveThirtyEight explains why it is so difficult to predict Supreme Court rulings.
At CNN, Ed O’Keefe reports on Justice Samuel Alito’s recent remarks about the press and criticisms of the Court’s lack of diversity.
On the Melissa Harris-Perry Show, Janai Nelson and Amy Howe consider the new Affordable Care Act challenge and how Justice Scalia could be the deciding factor.
Leslie Griffin writes at Hamilton & Griffin on Rights on how the recent opinion of Judge Cornelia Pillard of the U.S. Court of Appeals for the D.C. Circuit in Priests for Life v. HHS explains why women’s equality is not a radical idea.
Reuben Guttman writes in the International Business Times that the U.S. midterm elections were all about money but had very little substance.