The Secretary of Homeland Security and the Counsel to the President directed the Justice Department to investigate whether the president had the authority to take contemplated actions with regard to illegal immigrants via executive order. In a letter dated 19 November, they found he did not. On 20 November, he did it anyway.
Josh Gerson for POLITICO (“White House releases immigration legal opinion“):
The most interesting aspect of the legal advice President Barack Obama got on the immigration executive action he announced Thursday night may be what lawyers told the president he could not or should not do.
A 33-page Justice Department legal opinion made public just hours before Obama spoke concluded that he doesn’t have the legal authority to offer broad deportation relief to parents of so-called Dreamers—people who came to the U.S. illegally as children and won a reprieve from deportation in a program known as DACA that Obama created in 2012.
“As it has been described to us, the proposed deferred action program for parents of DACA recipients would not be a permissible exercise of enforcement discretion,” Justice Department attorney Karl Thompson wrote in the Office of Legal Counsel opinion.
The opinion also reveals, in a footnote, that Justice Department lawyers informally raised concerns about Obama’s initial 2012 DACA program before it was enacted.
Thompson’s legal memo about the new immigration initiatives warns the president against straying into areas untethered to policies or priorities Congress has set through legislation. “The Executive cannot, under the guides of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences,” Thompson wrote. “An agency’s enforcement decisions should be consonant with, rather than contrary to, the congressional policy underlying the statutes the agency is charged with administering.”
A senior administration official said Thursday lawyers concluded that actions like protection for parents of dreamers were “not legally available” to the president, largely because it would be building one set of executive actions upon another.
On the one hand, kudos to the administration for promptly releasing the memo. The norm in situations where OLC presents adverse findings is to bury said findings for as long as possible. Releasing the full memo so quickly is the height of transparency and truly laudable.
It’s worth noting, too, that OLC—rightly in my view—found that the president does have the “authority to prioritize the removal of certain categories of aliens over others,” particularly in light of inadequate funding to pursue the removal of all of them. But they specifically found that “the proposed deferred action program for parents of DACA recipients would not be a permissible exercise of enforcement discretion” precisely because it is not tethered to existing law. Pages 6 and 7 detail what seems a perfectly reasonable understanding of the law:
[T]he Executive cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences. See id. at 833 (an agency may not “disregard legislative direction in the statutory scheme that [it] administers”). In other words, an agency’s enforcement decisions should be consonant with, rather than contrary to, the congressional policy underlying the statutes the agency is charged with administering. Cf. Youngstown, 343 U.S. at 637 (Jackson, J., concurring) (“When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.”); Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658 (2007) (explaining that where Congress has given an agency the power to administer a statutory scheme, a court will not vacate the agency’s decision about the proper administration of the statute unless, among other things, the agency ”‘has relied on factors which Congress had not intended it to consider'” (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983))).
Third, the Executive Branch ordinarily cannot, as the Court put it in Chaney, ”‘consciously and expressly adopt a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities.” 470 U.S. at 833 n.4 (quoting Adams v. Richardson, 480 F.2d 1159, 1162 (D.C. Cir. 1973) (en banc)); see id. (noting that in situations where an agency had adopted such an extreme policy, “the statute conferring authority on the agency might indicate that such decisions were not ‘committed to agency discretion'”). Abdication of the duties assigned to the agency by statute is ordinarily incompatible with the constitutional obligation to faithfully execute the laws. But see, e.g., Presidential Authority to Decline to Execute Unconstitutional Statutes, 18 Op. O.L.C. 199, 200 (1994) (noting that under the Take Care Clause, “the President is required to act in accordance with the laws—including the Constitution, which takes precedence over other forms of law”).
On the other hand, it’s more than a little troubling that the president proceeded to issue the order anyway, contrary to not only the wishes of Congress and public opinion but the best legal advice available to him. As Gerson notes, the administration is operating on a different legal view than the professionals in the Justice Department:
However, that conclusion appears to have been based heavily on historical precedent as well as legal concerns. Officials said they consider Obama’s move to allow family members of U.S. citizens to receive protection from deportation to be very similar to previous moves by Presidents Ronald Reagan and George H.W. Bush, who also protected family members of individuals Congress had moved to allow to remain in the country legally.
“We were influenced by the fact that Congress already recognized the relationship between child citizens and parents as a relationship Congress wants to protect,” said the senior official who spoke on condition of anonymity.. “This was a sort of implementation of that Congressional policy as opposed to the parents of Dreamers, which would be….slightly different…We thought it was important to tie it to a Congressional policy.”
The difference in the actions taken by Reagan and the elder Bush and that taken by Obama is that the former were implementing the clear intent of Congressional law, protecting those who had fallen into the cracks of the legislation. In this case, Obama is essentially passing the DREAM Act by executive fiat.
Despite my generally supporting the DREAM Act, I find that outrageous. Indeed, as noted in the comment thread of another post yesterday, I consider this action impeachable. Note that I’m not calling for the president’s impeachment. Aside from it being politically untenable, the fact that Obama’s action comes in the wake of decades of his predecessors stretching the Constitution beyond recognition makes it difficult to argue that the duly elected—twice—president should be removed from office for continuing a trend. But this is nonetheless serves as a further and rather substantial weakening of the separation of powers.
Another president will, in the not too distant future, use this precedent to justify an action that supporters of Obama’s move will find outrageous. At that point, it’ll be too late to complain.