immigration reform

  • September 25, 2015
    Guest Post

    by Chris Edelson is an assistant professor of government in American University's School of Public Affairs. He is the author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, published in 2013 by the University of Wisconsin Press.

    I recently watched an oral history show on C-SPAN. A man named Kurt Klein, a German Jew who was able to come to the United States in the late 1930s and then served in the U.S. military during World War Two, described what it was like to liberate a concentration camp in 1945. He said (I am paraphrasing) that it was difficult to understand how human beings could have let something like this happen.

    That is an essential lesson one ought to learn from the Holocaust: what does it mean for us to be human, and what obligation do we have, as human beings, to prevent the suffering of other human beings?  As a practical matter, this forces us to consider whether the laws we have on the books are sufficient to meet our obligations to others as human beings.  If our laws are not up to the task, then they must be revised.

    The immigration crisis in Europe most recently forces us to answer the question of what it means to be human. More than 160,000 refugees from Syria and other countries are in a life or death struggle.  We have to confront the horrifying image of a toddler washed up on a beach in Turkey, his slightly older brother and his mother also dead. 

    In the Czech Republic, police reportedly took refugees off trains headed for Germany and written registration numbers on their arms in permanent ink. This is a sickening image. Hungary’s leader, Viktor Orban, has declared his country will keep immigrants out. Orban explains that he doesn’t want Muslims in Hungary—western Europeans are free to give them a home.  Refugees ended up sleeping in a Budapest train station where international trains were not available. This made it hard to understand Orban’s statement—were these people free to get to western Europe if they possess the power of teleportation? Hungary later provided buses to take some refugees to Austria, leaving others to walk to the border on their own.  Reports indicate that Hungary is sending refugees directly to the Austrian border on “special trains”. But there are also reports that Austria is introducing border controls. Meanwhile, The New York Times reports that “[s]tarting Tuesday, Hungary will classify unauthorized entry into the country as a criminal offense, punishable by up to three years in prison.”

    These people crowded onto trains, buses and boats, desperate to find safety somewhere in Europe, are human beings. They are mothers, fathers, small children, grandparents. Why then are they being treated “like animals," as one Syrian student put it?  I’d argue even animals shouldn’t be treated this way, but the point is clear: these are people who are not being treated as human beings.

  • June 8, 2015

    by Caroline Cox

    Jerry Markon reports for The Washington Post that the White House has stopped work on its immigration program in response to numerous legal setbacks this year.

    At SalonHeather Digby Parton writes about the plot against the Affordable Care Act and the dire circumstances that would arise should the Court rule against the healthcare law. 

    Sarah Kliff of Vox takes a critical look at the GOP's five plans to fix the Affordable Care Act should the Supreme Court strikes down the law.

    At SlateMichael J. Socolow explains how television stations are the major winners of the Citizens United ruling. 

    Kenneth Jost considers at Jost on Justice Texas's challenge to the "one-person, one-vote" rule that the Supreme Court granted cert to late last month.



  • 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.