Executive power

  • January 19, 2016
    Guest Post

    by Pratheepan Gulasekaram, Associate Professor of Law at Santa Clara University. Professor Gulasekaram teaches constitutional law and immigration law. He is also the co-author of the recently published book, The New Immigration Federalism (Cambridge Press).

    A Supreme Court term already loaded with high-profile cases on unions, voting representation, abortion, and affirmative action just added another blockbuster. The Court’s decision to hear United States v. Texas, the challenge to President Obama’s 2014 Deferred Action for Parental Accountability program (DAPA) by 26 states or state officials, will have far-reaching consequences for both the future of immigration enforcement and the power of states to upset those policies. In resolving the case, the Court holds in the balance the lives and livelihoods of an estimated five million persons, nearly half of the current undocumented population of the United States.

    The program has been on hold since a federal district court judge in Texas ruled that the Obama Administration (specifically, the Department of Homeland Security) violated the Administrative Procedure Act’s requirement of “notice and comment” rulemaking when it implemented DAPA. On appeal, a split Fifth Circuit panel ruled that even if DHS had complied with notice-and-comment procedures, DAPA was beyond the agency’s statutory authority. In addition, both lower courts found that the state of Texas had standing to prosecute the case, allowing a federal court to reach those conclusions on the merits. In granting certiorari, the Supreme Court asked the parties to also brief the question whether the President’s action was a violation of his constitutional duties under Art. II to “take care that the laws be faithfully executed.”

    Of course, the merits questions in the case raise difficult and important questions of delegated statutory authority to the executive branch, administrative law and procedure, and, most broadly, the president’s constitutional authority. I will not comment on these, as they have been the subject of extended commentary here, here, and here. Of the questions presented, the standing inquiry might be the least discussed, but one with the potential to seriously affect immigration policymaking well beyond the current presidential administration and programs like DAPA. This is especially true in our present-day quagmire of party polarization and congressional gridlock. Before discussing the case itself, though, it is worth contextualizing the political and legal dynamics that have culminated in this landmark case, highlighting the role both partisanship and federalism have played in landing Texas before the high Court.

    As I detail in a recently co-authored book, immigration policy since Sept. 11, 2001 has fallen victim to party polarization in a way that had previously not been true of immigration politics. That polarization largely explains the inability of Congress to pass immigration over the past 15 years, despite several attempts and broad support from the American public. In turn, Congress’ silence has cleaved space for two emerging policy dynamics. First, states have stepped more fully into the legislative void, enacting an unprecedented volume of both restrictionist and integrationist policies. Second, the federal executive branch has become much more conspicuous and robust in fashioning immigration policy through both enforcement calibration and litigation. The Texas case implicates both trends, and their partisan roots, simultaneously.

    From 2004 through 2011, restrictionist state enactments reached record levels, with most of those policies enacted by Republican-controlled state governments seeking to enhance immigration enforcement and encourage unauthorized immigrants to “self-deport.” As I chronicle in a forthcoming law review article, the Obama Administration took the unusual step of suing several states – including Arizona and Alabama – to quash these state immigration regulations. The Court’s 2012 ruling in Arizona v. United States struck down several provisions of these laws, based in large part on a conflict between the state laws and the Administration’s enforcement priorities. Upholding the state immigration enforcement law in Arizona would have changed business-as-usual in immigration federalism, shifting significantly more power to the states to potentially dictate the volume and characteristics of immigration enforcement. Instead, some have argued that the case reified – perhaps expanded – executive control over immigration policy.

    As it turned out, the administration’s victory in Arizona was only the second most prominent executive-led immigration event of 2012. That summer, the president announced his Deferred Action for Childhood Arrivals program (DACA), providing deportation relief and the possibility of employment authorization to a large portion of undocumented youth. DACA, along with the Arizona case and the president’s reelection, triggered another wave of state and local enactments, but this time with a more integrationist bent. States expanded driver’s license, public assistance, and educational benefit availability for undocumented immigrants. Not surprisingly, in contrast to restrictionist schemes, integrationist policies were passed almost exclusively from jurisdictions – like California and New York City - controlled by Democrats.

  • January 19, 2016
    Guest Post

    by Leticia M. Saucedo, Professor of Law and Director of Clinical Legal Education, UC Davis School of Law

    The Supreme Court granted certiorari in United States v. Texas today, agreeing to hear the federal government’s questions on its immigration policy and adding one more. The Court will decide whether the federal government’s policy to postpone the deportations of millions who are in the United States in undocumented status is arbitrary and capricious, whether it was subject to the APA’s notice and comment procedures, and whether the states have standing to sue. The Court added a question that was not decided in the lower courts, namely, whether the policy violates the Take Care Clause in Art. II, Sec. 3, which requires the president to take care that the laws of the United States are faithfully executed.

    At issue in this case is the president’s announcement of a guidance that would defer action on the undocumented noncitizens in the United States who have lived in the United States for five years and who came as children, or who have U.S. citizen or permanent resident children. The federal government claims that the president’s guidance is permitted under immigration law, which allows the Department of Homeland Security to postpone, for its own convenience or for humanitarian reasons, the removal of noncitizens from the United States. The immigration statute also allows the Department of Homeland Security, for its own convenience, to issue employment authorization to these individuals. Notably, deferred action does not bestow any form of legal status on noncitizens, nor does it provide any benefit.

    The most interesting part of the Court’s grant is its signal that it will decide whether the president’s guidance violates the Constitution’s Take Care Clause. The questions of whether the president has faithfully executed the laws of the United States requires a deep understanding of the multi-dimensional nature of the immigration law at stake.

  • January 5, 2016
    Guest Post

    by Ariela Gross, the John B. and Alice R. Sharp Professor of Law and History, USC Gould School of Law.

    President Obama today took several important although limited executive actions to curb gun violence. Following the recommendations suggested by a group of law professors last month, he closed the “gun show” loophole by requiring that everyone “in the business of selling firearms” be licensed and conduct background checks; he directed the FBI and ATF to prosecute vigorously those individuals who seek to buy guns after failing background checks; and called for stricter enforcement of domestic abusers who use guns; as well as promising more funding for enforcement of the existing gun laws. All of them relatively mild, sensible moves well within his constitutional authority – and no threat to the Second Amendment.

    You would think from the GOP’s reaction that he had suggested government agents march into people’s homes and seize their firearms en masse. Texas Governor Greg Abbott’s “COME AND GET IT” challenge has been re-tweeted five thousand times as of this writing. “Pretty soon you won’t be able to get guns,” warned Donald Trump. Paul Ryan claims President Obama is “going after law-abiding citizens,” and Jeb Bush calls his actions “unlawful.” Plans to challenge the actions in court are already underway.

    We shouldn’t be surprised by this uproar. Despite strong popular support in recent polls for these limited gun control measures, Republican officeholders and candidates are deeply indebted to the NRA for financial support. In 2014, The NRA spent nearly $11 million in independent expenditures for Republican candidates, and well over $3 million on lobbying against gun restrictions.

    Just as the NRA has contributed to the political polarization that ails American politics – so that Republican leaders can’t support even the mildest of limits on guns, ones that would have been uncontroversial even ten years ago – the disparate racial impact of our gun culture is increasingly evident. According to Nate Silver, African Americans are killed at twelve times the rate of people in other developed countries. In July, Chicago activists brought suit in Cook County Circuit Court alleging that the methods of “licensing and regulating gun dealers” employed by three Chicago suburbs violate the Illinois Civil Rights Act because of the disparate impact of the resulting gun violence on African Americans in Chicago. In recent months, we have seen a rash of police shootings of black men and boys, most of which have gone unpunished. And at the same time, a gang of white criminals armed with guns, named “militia-men” rather than thugs or terrorists in the mainstream press, has hijacked a Federal building and demanded the overthrow of the government.

    For the moment, however, we can applaud President Obama’s actions, his words, and his determination to stand firm against the inevitable NRA onslaught. Much, much more is needed to prevent the mass shootings that have become almost a daily routine in the past several years. For that, we must all mobilize to push Congress to act.

    [image via Gage Skidmore]

  • January 5, 2016
    Guest Post

    by Adam Winkler, Professor of Law, UCLA Law. Winkler is author of Gunfight: The Battle Over the Right to Bear Arms in America.

    President Obama announced today a series of gun reforms that he plans to execute as a matter of executive action. Federal gun laws are pretty detailed, so there were significant limits to what the president could do. Yet, as a group of scholars (including me) advised in a recent American Constitution Society letter, the president does have the authority to do more to limit access to guns by felons and the mentally ill and to crack down on rogue gun dealers. The proposals announced today do just that.

    The reforms, taken individually, won’t have that much immediate impact. Nonetheless, taken together, they might make a dent in America’s epidemic of gun violence. Much of the media attention so far has focused on his proposal to broaden the definition of who is “engaged in the business” of selling guns and who, therefore, must have a license and conduct background checks. That’s a worthwhile reform, but equally important are the other elements of his gun reform package: strengthening the background check system by gathering more information from states; hiring more agents for the Bureau of Alcohol, Tobacco, and Firearms, the main federal law enforcement agency charged with overseeing our gun laws; and encouraging federal agencies to finance gun violence prevention research. These reforms will, in the long run, make it easier to crack down on rogue gun dealers and do more to insure that people prohibited from purchasing firearms don’t slip through the cracks of our current background check system.  

    Perhaps the most significant aspect of this package of gun reforms is that, regardless of the details of the proposals, what it says about the state of the gun debate. For the past few decades, it was unimaginable that a democratic president would propose gun reforms in an election year. Democrats saw gun control as a losing issue. That’s changed since Newtown. Today, we are seeing Democrats seize the gun control issue rather than run away from it. Hillary Clinton has made gun control a central plank in her platform, gun control candidates are receiving significant financial support from gun control organizations, and we are seeing vibrant political mobilization by Americans who want better gun laws. Even without Congress acting, we’ve seen considerable reform at the state level, and (as these proposals highlight) through executive action. The gun control movement is back. 

  • November 20, 2015
    Guest Post

    by Leticia M. Saucedo, Professor of Law and Director of Clinical Legal Education, UC Davis School of Law

    One year ago today, President Obama announced his administration’s executive actions on immigration. Known as the DAPA Memo, the announcement described executive actions that would have exercised prosecutorial discretion not to deport millions. Since then, a district court in Texas has stalled its implementation with an injunction, claiming that the executive branch overstepped its authority by offering deferred action to millions of undocumented persons. Most recently in Texas v. United States, the U.S. Court of Appeals for the Fifth Circuit agreed, noting that the executive actions were outside of any authority delegated by Congress. The Fifth Circuit denied the federal government’s petition to stay the federal district court’s injunction, characterizing the administration’s actions as proposing to confer deferred action and then employment authorization categorically to millions in violation of the Administrative Procedure Act. The court got it backward in its analysis.

    The Court of Appeals premised its analysis on the notion that because the government was outside its authority to grant deferred action, it was also outside its authority to grant employment authorization. Here is where the Court of Appeals got it wrong. As the government argued and the dissent in the appellate decision concluded, it is the agency’s authority to regulate worksite immigration enforcement that allows it to also grant deferred action on a category of individuals for its convenience.

    The employer sanctions provisions of the Immigration Reform and Control Act (IRCA) –which established the parameters of employment authorization – expressly grant wide latitude to the agency, and Congress specifically intended to provide the agency with this broad authority. When Congress first set up employer sanctions and a worksite immigration enforcement scheme in IRCA, it made the explicit decision to give the executive branch the authority and discretion to provide employment authorization to certain classes of noncitizens. INA § 274A(h)(3) defines an “unauthorized alien” for employment purposes:

    As used in this section, the term “unauthorized alien” means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General. (emphasis added).