Did Obama have authority for immigration action? Justice memo raises questions.

Did the Office of Legal Counsel tell the president Wednesday he couldn’t do what he did on Thursday? That question hangs over Obama's executive action.

Carolyn Kaster/AP
President Obama waves as he boards Air Force One Friday at Andrews Air Force Base, Md., en route to Las Vegas, where he will speak at Del Sol High School about the steps he will be taking on immigration.

The secretary of Homeland Security and the counsel to the president (OLC) 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 Nov. 19, they found he did not. On Nov. 20, 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 it 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 Mr. 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 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.

Some of the commentary I’ve seen on this blames congressional Republicans for forcing the president’s hand here. While they certainly deserve criticism for a lot of things, that notion doesn’t hold water. Specifically, multiple people have argued that all that needed to happen to have avoided Obama’s action was for House Republicans to pass the bill passed by the Senate. Indeed, the president himself said that in his speech. But that stands the Constitution on its head. We pass laws in this country when they’re passed by both Houses of Congress and signed by the president. The fact that the House is predisposed not to pass anything a Democratic president proposes is frustrating; that doesn’t allow the president to simply enact said proposals by executive fiat.

UPDATE: Doug Mataconis correctly notes that, contrary to speculation ahead of the speech, “the plan announced last night does not extend relief to the parents of DACA children.” It nonetheless goes well beyond existing law. As described by the lead WaPo story on the order,

Under Obama’s plan, undocumented parents of U.S. citizens and legal permanent residents would qualify only if they have lived in the country at least five years – since Jan. 1, 2010. The administration said it will be ready to begin taking applications in the spring, and that those who qualify will be granted three years of deportation relief, meaning they would be protected through the first year of Obama’s successor in 2017. It would be up to the new administration to determine whether to continue the program or eliminate it.

The new deportation protections are a year longer than they are under an existing Obama administration program, started in 2012 for younger immigrants, known as Deferred Action for Childhood Arrivals (DACA).

Officials said that the DACA program also would be revised to provide three years of relief and that they would change the date by which DACA applicants must have arrived in the United States from June 15, 2007, to Jan. 1, 2010, to conform with the program for parents.

Many of those who are granted administrative relief will be eligible to get Social Security numbers and work permits, officials said.

Administration officials also said the president’s new policies would create visas for immigrants who can show that they are investing economically in the United States and for workers in some high-tech fields.

I don’t see how this is anything other than Obama enacting essentially all of the DREAM Act by fiat.

UPDATE 2: Walter Dellinger, who served as acting solicitor general under President Clinton, cites the same memo and finds no problem with Obama’s decree.

[T]he idea that the immigration plan just announced by President Obama is a lawless power grab is absurd. As the Justice Department legal analysisthat was just released amply demonstrates, much of the advance criticism of the president’s action has been uninformed and unwarranted. The opinion is well-reasoned and at times even conservative. The president is not acting unilaterally, but pursuant to his statutory authority. Wide discretion over deportation priorities has long been conferred on the executive branch by Congress, and it is being exercised in this case consistent with policies such as family unification that have been endorsed by Congress.

Even though the action is breathtaking in scope, there is nothing legally remarkable about what the administration is doing, or the legal analysis supporting it.


As Eric Posner, who served in the Office of Legal Counsel under the first President Bush, notes, the president “is just doing what countless Congresses have wanted him to do” – setting priorities for deportation enforcement.

Let’s be clear about what the administration has not done in this opinion. No one has been granted “amnesty,” either literally or functionally. And no precedent has been set for this or any future president to act unilaterally in disregard of acts of Congress. On the contrary, the legal opinion rejects a second proposed exercise of discretion – deferring deportation of the parents of “Dreamers” – that Justice concluded cannot be said to carry out priorities established by Congress.

But that doesn’t address the portions of the opinion that I’ve quoted above. Obama is going well beyond simple discretion in taking action that Congress has ordered him to execute; he’s deciding to ignore portions of existing law and act as though an unpassed law had been passed. Mr. Dellinger continues:

In cases such as Heckler v. Chaney (1985), the Supreme Court has repeatedly emphasized that where Congress has not provided guidelines for executive enforcement, the determination of enforcement priorities is within the “special province of the Executive.” This is especially clear in the area of immigration. As the court recently noted in Arizona v. United States (201w), some of the discretionary deportation decisions the executive makes are appropriately based on general policy considerations, such as concerns implicating foreign affairs.

In approving the lawfulness of part of the proposed deferred action, the opinion released Thursday night from the Justice Department’s Office of Legal Counsel, or OLC, is careful to reaffirm that officials may not abdicate their statutory responsibilities. In particular, the opinion states that Congress’s endorsement of certain deferred-action programs does not mean that such programs can be extended to any class of aliens. The proposals were carefully vetted to ensure that the expansion of deferred action to the new categories was consonant with congressional policy.

But note that the portions of the OLC memo that I’ve quoted are also based on Chaney and find the opposite of what Dellinger advocates. Regardless, he argues that they were likely overly cautious:

He points us to a forthcoming posting by Marty Lederman that has since posted. It’s extensive and mostly addresses hysterical arguments about “amnesty” and “monarchy” that I’m not making. Germane to my concerns, however, he argues:

1.  It’s not “unilateral” executive action.  Yes, of course the President has acted without any new statutory enactment, and his initiative was made necessary only because of intransigence in the House that prevents a vote on more far-reaching immigration reform (see Point 9, below); nevertheless it is important to emphasize that the new DHS enforcement priorities and deferred action status policy are being promulgated pursuant to statutorily delegated discretion.   See especially pages 4-5 of the opinion of the Office of Legal Counsel.  And OLC’s ultimate conclusion is that the new initiative is “consonant with congressional policy embodied in the [Immigration and Nationality Act]” (p. 24).  On a first read, OLC’s analysis of the scope of DHS’s statutorily conferred discretion, and how it has historically been exercised, appears to be solid, careful, measured and (as explained below) limited.  Whether or not OLC is correct in all of the particulars of its analysis, however – a question that, as mentioned above, I’ll leave to others who have greater expertise than I do – the important point is this:  What is at issue is simply a question of statutory interpretation, about the discretion that Congress has conferred upon the Secretary of DHS.

But, as I’ve already noted, pages 6-7 put some rather strong caveats on that argument.

2.  It’s not an example of constitutional “monarchy,” or a replay of Bush Administration claims of preclusive executive authority.  Indeed, it’s not an exercise of constitutional “executive power” at all:  The President and Secretary of DHS are not invoking any Article II authority, let alone an authority to override or disregard statutes.  (The OLC opinion does say (p.4) that the discretion that Congress is presumed to have conferred upon the Executive is “rooted” in the President’s constitutional duty to take care that the law is faithfully executed:  The point of invoking the “Take Care” Clause, however, is that implementing such enforcement priority decisions is “faithful” to the laws Congress has enacted.)

But the memo likewise concludes that much of the action contemplated and some of that taken goes beyond the “Take Care” discretionary authority.

3.  It does not “cut out Congress” – indeed, it relies upon statutory authority.  Nor does it contradict what Congress has prescribed.  Neither the President nor the Secretary nor OLC has said anything to suggest that Congress could not, by statute, require a different enforcement scheme—to the contrary, OLC specifically acknowledges (pp. 4, 6) that Congress could legislate limits on enforcement discretion that the agency would be obliged to follow.  Moreover, and of great significance, OLC specifically concludes that, because enforcement priority decisions must be “consonant with, rather than contrary to,” Congress’s policy decisions as reflected in the governing statutes (pp. 5, 20), it would not be permissible for DHS to afford deferred action status to one category of aliens that the agency had proposed to cover (parents of children who have received deferred action status under the so-called “DACA” program):  Offering deferred action status to such aliens, OLC opined, would be unlawful because it would “deviate in important respects from the immigration system Congress has enacted and the policies that system embodies” (p. 32).

But, again, this stands the Constitution on its head, arguing that the president can simply ignore large swaths of existing law unless Congress specifically passes a law – presumably, by a veto-proof supermajority – overturning his order.

Dellinger and Mr. Lederman are right on the larger point that presidents have carved out enormous discretionary power over the years and that the courts have allowed much of that to slide. That’s why I ultimately don’t support impeachment here. But I nonetheless believe Obama’s order has further weakened our system of checks and balances and, indeed, the rule of law.

James Joyner is editor of the Outside the Beltway blog at http://www.outsidethebeltway.com/. 

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