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.
Many may despair -- believing the next two years in Washington will be a long slog of tiresome partisan fights with no positive action to improve the lives of Americans. But moping is the last thing progressives should be about.
Let's talk judicial nominations. Federal courts are vital -- they decide pressing matters every day, whether they are challenges to employment discrimination, corporate malfeasance, or immigration appeals. Do we just throw our hands up on judicial nominations, buying into a lazy argument that nothing much can be done now with a Senate controlled by Republicans? There likely are many important policy matters that will be shelved. But it doesn't have to be that way with judicial nominations. On this front there's work to be done and it can be achieved with an energetic attitude -- not apathy.
There are 64 vacancies on the federal bench and if we give up on the federal courts that number will spike and we'll have judges with outlandish caseloads and Americans with a sluggish, inefficient court system. Part of the Senate's job is to confirm judges to ensure our country has a well-running judicial system. We know all too well that for much of Obama's presidency, Senate Republicans have obstructed the process, slow-walked the president's nominations while arguing everything was just fine. Republican leaders who will take control of the Senate in the New Year are talking about cooperation and working with President Obama, but let's be ready to hold them to their words.
Some of the current vacancies can and should be filled during the lame-duck session. Democrats in the Senate need to get over the outcome of the midterm elections in quick manner and fill 25 vacancies, which can be done -- with the right attitude. There are 16 judicial nominees who have been approved by the Senate Judiciary Committee and are ready for up-or-down votes on the Senate floor. There's no excuse for letting those nominees languish. There are also nine nominees, who have had hearings before the Senate Judiciary Committee. The Committee should move those nominations to the Senate floor as soon as possible. This is doable in the lame duck.
And then the next two years -- again no time for dwelling on what could have been. The Senate Republicans may turn back to their obstructionist ways -- let's hope not. Maybe they'll surprise us on the judicial nominations front and realize this is an area for cooperation. But if not, progressives must be ready to push back and keep up the pressure, reminding as many Americans as possible of the great importance our judicial system is to a well-functioning democracy.
Jess Bravin reports for The Wall Street Journal on Chief Justice John Roberts’ remarks at a celebration for the 800th anniversary of the Magna Carta.
In The New York Times, Adam Liptak reviews the oral arguments for Yates v. United States, which has the Supreme Court considering whether a fisherman can be convicted of violating a federal law aimed at white-collar crime for throwing back undersized fish into the Gulf of Mexico.
Richard Re at Re’s Judicata lists the top ten moments during oral arguments, which proved to be “hilarious, insightful, and sometimes surreal.”
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.