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.
Watching Congress utterly fail to discharge its duty as President Obama boldly exceeds the limits of his power by unilaterally authorizing military action against ISIS reminds me of the old philosophical question: if a tree falls in the forest and no one’s there to hear it, does it makes a sound? In this case, the question is: if the President violates the Constitution and Congress does nothing, are there any consequences for the constitutional violation?
The answer is almost certain to be “no”. The Constitution is not self-enforcing. It only works when each branch of government resists and rejects overreach by the others—and, when it comes to checking executive overreach in the context of national security, the key actor is Congress. As Justice Robert H. Jackson observed in the 1952 Youngstown Sheet decision, “I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems. A crisis that challenges the President equally, or perhaps primarily, challenges Congress…We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.”
by Neil J. Kinkopf, Professor of Law, Georgia State University College of Law
A growing chorus of legal scholars has argued that President Obama’s move against the Islamic State of Iraq and the Levant (ISIL) lacks legal authority. Professor Noah Feldman has most recently added his voice. He first made the claim on Tuesday in a blog post and repeated it Thursday on NPR’s “All Things Considered.” Feldman assures his readers that “We can dispense quickly the justifications that the administration has proffered ….” True to his word, Feldman dispenses with the arguments quickly – too quickly, leaving his analysis facile and utterly unpersuasive.
In fact, at least three sources firmly establish the President’s authority to proceed against ISIL.
1. Days after the terrorist attacks of September 11, 2001, Congress specifically empowered the President to respond. Under the 2001 Authorization of Use of Military Force, “the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons ….” Prof. Feldman argues that this law does not support the President’s action against ISIL. Here’s the full argument:
The 2001 authorization is less applicable still. In it, Congress told the president he could make war on anyone he determines to have “planned, authorized, committed, or aided” the Sept. 11 attacks. The George W. Bush and Obama demonstrations [sic] have vastly expanded this language to cover al-Qaeda affiliates and spinoffs that didn't exist in 2001. But even these extensions don't cover Islamic State, which is not only unaffiliated with al-Qaeda but also at war with its affiliate in Syria, known as the Nusra Front.
by Peter M. Shane, the Jacob E. Davis and Jacob E. Davis II Chair in Law, Ohio State University, Moritz College of Law
Headlines often describe President Obama as “going it alone” on public policy in light of congressional inaction. But his boldest moves in favor of workers’ rights are rooted in an obscure statute enacted 65 years ago – the Federal Property and Administrative Services Act of 1949 (FPASA). That statute’s explicit purpose is to establish “an economical and efficient system for . . . [p]rocuring and supplying property and nonpersonal services” for the federal government.” Most important, it specifically empowers the President to “prescribe policies and directives that the President considers necessary to carry out” FPASA’s purposes.
In late July, President Obama issued two important orders resting directly on his FPASA authority. Executive Order 13672 adds to the prohibitions on employment discrimination by federal contractors a ban on discrimination based on “sexual orientation” or “gender identity.” Executive Order 13673 imposes a variety of measures to insure that federal contractors comply with state and federal labor laws. It further prohibits employers with federal contracts worth $1 million or more from insisting on the mandatory arbitration of worker complaints dealing with sexual assault or harassment or with claims arising under title VII of the Civil Rights Act of 1964. Last February, the President issued Executive Order 13658, imposing a higher minimum wage requirement on federal contractors, as well.
These orders have important precedents. President Kennedy relied on FPASA to prohibit race discrimination by federal contractors, a requirement amplified by President Johnson. President Nixon relied on FPASA to require federal contractors to engage in affirmative action to achieve equality in employment. President Carter used FPASA to impose a temporary system of wage and price controls on federal contractors. President Bush required federal contractors to inform employees of their right not to join a union. These orders have all been upheld in court.
Last week President Obama admitted what most people have long known—that, in the president’s words, “we tortured some folks” after 9/11 in a bid to thwart future terrorist plots. The president was referring to a soon-to-be released report by the Senate Select Committee on Intelligence (SSCI) that documents the CIA’s use of torture and cruel, inhuman, or degrading treatment at secret “black sites” around the world in the wake of the 9/11 attacks. But the CIA has resisted and even undermined oversight on this critical issue from the beginning. And now current and former CIA leaders appear poised to mount a “counterattack” to undermine the report’s key findings and defend the so-called “enhanced interrogation” program. President Obama can’t let that happen. He should direct members of his administration, including CIA Director Brennan, to get in line with the anti-torture policy he laid out when he—as one of his first official acts as president—signed an Executive Order shuttering the CIA black sites and banning torture and other forms of cruel treatment.
The SSCI report is the result of a five-year inquiry into the CIA rendition, detention and interrogation program; it began when the committee discovered that the CIA had disregarded warnings from the White House and destroyed videotapes of waterboarding and other brutal torture sessions. The report—a voluminous account, at 6,700 pages—is based on a review of more than 6 million pages of official documents, and is said to conclude that interrogations in the CIA program were much more widespread and brutal than previously known, and much less effective at gathering intelligence to stop terrorist plots than proponents of so-called “enhanced interrogation” claim. The report will show, for example, how the interrogation program played no meaningful role in gathering intelligence to help discover Osama Bin Laden’s whereabouts. It is also said to document how the CIA systematically misled Congress, the Department of Justice, and the White House about the effectiveness of the program. Senator Dianne Feinstein, Chair of the SSCI, has called the investigation into the CIA’s use of torture one of the most significant in the history of the United States Senate, and the most important oversight activity ever conducted by the SSCI. The executive summary, findings and conclusions of the SSCI report—about 600 pages of material—are set to be released in the coming weeks.