immigration reform

  • November 22, 2014
    Guest Post

    by Neil J. Kinkopf, Professor of Law, Georgia State University College of Law

    The debate over President Obama’s action on immigration has raised a difficult and enduring issue: the nature and scope of the executive’s prosecutorial, or perhaps more accurately, enforcement discretion. The existence of such discretion is inevitable and, in many circumstances, desirable. Consider the familiar example of the enforcement of speed limits.  Anyone who travels the nation’s highways knows that law enforcement officers do not pull over drivers who slightly exceed the posted speed limit. We would expect a driver to be upset to get a ticket for going 56 mph in 55 mph zone. To some extent this practice of ignoring slight violations of speeding laws results from scarce enforcement resources. While a police officer is occupied with issuing a ticket to a speeder, that officer is unable to pull over other speeders.  An officer who tickets the hypothetical driver for going 56 mph risks allowing a dangerous speeder, say someone going 90 mph, to evade detection. This risk wouldn’t exist if there were an unlimited number of police officers at the roadside able to take over while one officer pulls over the 56 mph driver.  Given the existence of scarce enforcement resources, police officers have concluded that refraining from enforcing speed limits against slight violators actually better promotes the goal of the speed limit – highway safety.

    On the other hand, it is easy to see how this discretion might be abused. The power could be used to undermine the force of existing laws and thus, in effect, to repeal or revise those laws.  Imagine, for example, the President orders the Social Security Administration to cease processing social security payments because doing so would conserve scarce federal resources.  This order would be clearly illegal.  It would violate individual rights (for qualified persons to receive the payments) and an affirmative statutory command to the executive branch (to make the payments). 

    What are we to do when the exercise of discretion does not fall at one of these extremes?  This is a truly important issue.  At its heart, the issue involves the proper relationship between the executive and legislative branches.  The conundrum is expressed in the Constitution’s Take Care Clause (which directs that the President “shall take Care that the Laws be faithfully executed”).  This Clause simultaneously imposes a duty on and recognizes power in the President.  On the one hand, the Clause forbids the President to refuse to enforce the laws (I do not mean to address the context where statutes conflict with one another or with the Constitution).  On the other hand, the idea of “faithful execution” must include some room for the exercise of discretion to determine what course will faithfully execute the laws.  This theoretical conundrum has real practical resonance.  Conservatives today see the President flouting the recent elections and pursuing a regulatory policy that is not only inconsistent with those results but represents the sort of broad policymaking that one would ordinarily expect to see in a statute, not in unilateral executive action.  The President, on this view, is usurping the legislative power.  This is not a frivolous concern.  Flipping the political valence, consider a future, conservative President taking the position that he or she is clothed with discretion to refrain from prosecuting violations of certain federal firearms laws or environmental protections.  Many of those expressing approval of President Obama’s order would be outraged at the usurpation of a President who unilaterally re-writes the law of environmental protection or firearms safety.

  • November 21, 2014
    Guest Post

    by Erwin Chemerinsky and Samuel Kleiner. Chemerinsky is Dean of the University of California, Irvine School of Law; Kleiner is a fellow at the Yale Law Information Society Project.

    In the face of an ongoing humanitarian crisis as families are broken up by deportations, President Obama’s bold executive action is legally permissible and morally necessary. The angry Republican rhetoric is misguided both as a matter of constitutional law and as a matter of desirable social policy.

    In terms of the Constitution, President Obama drew a careful distinction based on what he can and can't do without congressional action. The President cannot bestow citizenship on individuals except as authorized by law. President Obama’s executive order does not attempt to do this. 

    But what a president may do is set enforcement priorities, choosing who to prosecute or who to deport. No government brings prosecutions against all who violate the law. Resources make that impossible and there are laws on the books that should not be enforced. Nor has any administration, Democratic or Republican, sought to deport every person who is illegally in the United States.   For humanitarian reasons or because of foreign policy considerations or for lack of resources, the government often chooses to focus deportations along certain criteria.

    In fact, as recently as two years ago, the Supreme Court in United States v. Arizona recognized that an inherent part of executive control over foreign policy is the ability of the President to choose whether or not to bring deportation proceedings. On numerous other occasions, the Supreme Court and lower federal courts have recognized prosecutorial discretion to decide when to bring criminal prosecutions or immigration enforcement actions.

    The overblown Republican rhetoric fails to recognize that what President Obama announced was enforcement priorities. He has instructed the executive branch, which is under his control, to prioritize deportation proceedings against felons and those who pose a public danger, but not to deport parents of young children who are United States citizens and who present no threat.   Such discretion is clearly and unquestionably part of the president’s power.     

    Nor is there any realistic chance that any court will find otherwise. No one is likely to have standing to challenge President Obama’s policy. And even if a court were to address the issue, the law is well established that presidents have discretion to decide whether to prosecute or bring deportation actions. Contrary to the Republican rhetoric, President Obama is violating no law and is acting within his constitutional authority.

  • November 20, 2014
    Guest Post

    by Adam Cox, Professor of Law, New York University School of Law, and Cristina Rodriguez, the Leighton Homer Surbeck Professor of Law, Yale Law School

    *Professors Cox and Rodriguez have commenced a symposium at Balkinization, which we're cross-posting.
     
    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.[1] 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.

     

     
  • June 3, 2014

    by Paul Guequierre

    Immigrant families in California garnered a victory recently, when U.S. District Court Judge for the Northern District of California Yvonne Gonzalez Rogers granted a preliminary injunction in the case of Preap v. Holder

    The case, brought by Asian Americans Advancing Justice, Asian Law Caucus, the American Civil Liberties Union of Northern California and Keker & Van Nest LLP Partner Jon B. Streeter, seeks to halt the federal government’s ongoing practice of holding undocumented immigrants, often for minor infractions, for months as they begin the deportation proceedings. In most cases the immigrants do not pose a flight risk, have ties to their communities and are raising families.

    Holding these immigrants without bond denies them the ability to mount their defense in deportation cases. The practice also rips families apart, leaving children with one less parent and often leaving family members to raise children without the detainee’s income. The rule of law is quite literally hurting children and families.

    Streeter said, “This case has the power to stop the federal government’s outrageous process of holding people without bond. We are now one step closer to ensuring those who aspire to be citizens are treated fairly before the law.”

    Judge Rogers’ injunction comes at a critical time in the fight for comprehensive immigration reform. Last summer the Senate passed a bipartisan immigration reform bill. House leaders, including Speaker John Boehner (R-Ohio) and Majority Leader Eric Cantor (R-Va.), however, refuse to allow the bill to come up for a vote, insisting they would only consider piecemeal actions instead of the Senate bill. Meanwhile, 11 million otherwise law-abiding undocumented immigrants in the United States are denied the chance at a path toward citizenship.

    Without comprehensive immigration reform, our nation’s immigrants face ongoing risk of arrest and detention for simply being who they are in the country they call home. They depend on victories like the one issued by Judge Rogers, not to get by, but to get through another day.

  • April 25, 2014

    by Charles Withers

    In this year’s State of the Union address, President Obama called on Republicans and Democrats alike to “fix our broken immigration system.” Now, ten months since the Senate passed comprehensive immigration reform, it remains unlikely that the House of Representatives will follow suit. Meanwhile, amid Congress’ cantankerous political environment, immigration reformers are urging the president to use his executive authority to reduce deportations. In a memo released Monday, The American Federation of Labor and Congress of Industrial Organization called on the White House to address the “urgent needs of workers and immigrant communities” and to “stop sweeping individuals into the deportation pipeline.” While the AFL-CIO’s recommendations speak to a growing demand for federal involvement, many are looking instead to state governments for meaningful immigration reform.

    ACS and the Center for American Progress recently hosted a panel of immigration experts to discuss U.S. immigration policy and how state and local efforts are addressing the needs of undocumented persons. Some panelists suggested that a narrow focus on the federal courts and legislatures ultimately limits the overall effectiveness of immigration reform. 

    Moderated by CAP’s Vice President of Immigration Policy, Angela Maria Kelley, the discussion focused on key issues facing immigrant communities today, including onerous laws such as the infamous racial profiling law that Arizona enacted in 2010. Karthick Ramakrishnan, an associate professor of political science at UC Riverside who co-wrote an ACS Issue brief with fellow panelist Pratheepan Gulasekaram, refers to the bill’s architect, Kansas’ Secretary of State Kris Kobach, as a restrictionist issue entrepreneur -- someone who “offers restrictive laws as pre-packaged solutions in search of immigration problems.” Kobach’s blueprint for anti-immigration policy inspired similar “copycat” legislation which extended the law’s detrimental effects to Alabama, Indiana, Georgia, Utah and South Carolina. According to Ramakrishnan and Gulasekaram, issue entrepreneurs like Kobach “played a two level game very effectively,”  manipulating immigration reform at the national level and then using the diminished federal action to empower support for state-funded anti-immigrant policies.