136 Law Professors Say President Has Legal Authority to Act on Immigration

Written by on September 3, 2014 in Executive Action with 17 Comments

6943077858_4077adfcbd_kAfter immigration reform stalled in the House, President Obama announced that he plans to “fix as much of our immigration system as I can on my own, without Congress.” A chorus of legal experts and columnists agreed that he’d be on solid ground if he did. The President has discussed deferring deportations for up to 5 million immigrants, starting with families, whose lives hang in the balance.

Today, 136 law professors from across the United States joined the debate with a clear statement of support for the President’s ability to take action. Their letter states clearly that the “administration has the legal authority to use prosecutorial discretion as a tool for managing resources and protecting individuals residing in and contributing to the United States in meaningful ways.” Prosecutorial discretion is “grounded in the Constitution, and has been part of the immigration system for many years.”

Moreover, as the Deferred Action for Childhood Arrivals (DACA) program has shown, these “kinds of procedures help officers to implement policy decisions fairly and consistently, and they offer the public the transparency that government priority decisions require in a democracy.” Indeed, Stephen Legomsky, former U.S. Citizenship and Immigration Services chief counsel who is a Washington University School of Law professor, said, “As part of the administration’s legal team that ironed out the details of DACA, I can personally attest that we took pains to make sure the program meticulously satisfied every conceivable legal requirement. In this letter, 136 law professors who specialize in immigration reach the same conclusion.”

The letter was drafted by experts in prosecutorial discretion—Legomsky, Hiroshi Motomura of UCLA Law School, and Shoba Sivaprasad Wadhia of Penn State University School of Law. And the signing professors, from 32 states, the District of Columbia and Puerto Rico, represent a wide-cross section of America. There are signers from Texas and Florida to North Carolina, Arizona, and Missouri, among other states. Every Ivy League law school is represented, as well as state schools and faith-based institutions. The letter “reflects a clear, broad, and informed consensus,” said Motomura.

In their letter, the law professors point out that presidents from both parties have used prosecutorial discretion to prevent specific, and often large, groups of immigrants from being deported, including:

  • In 1990, the George Bush Sr. administration announced a “Family Fairness” policy to defer deportations and provide work authorization to up to 1.5 million unauthorized spouses and children of immigrants who qualified for legalization under 1986 Congressional legislation.
  • In 2005, the George W. Bush administration announced a “deferred action” program for foreign academic students affected by Hurricane Katrina.
  • In 1981, the Ronald Reagan administration issued a form of prosecutorial discretion called “Extended Voluntary Departure” to thousands of Polish nationals.

Reports recently are that the President “hasn’t made a decision about the timing” of his action. But with this letter, there should be no debate on one issue—the President can take action. The only questions are what action he takes, and when.

Photo by Dwane Bent.

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  • BowenG

    It is part of America’s deeply rooted Constitutional tradition that Presidents, unlike English kings, lack authority to suspend statutes or make them inapplicable to certain individuals or groups (like the single Homeland Security Department memo, that immigration laws no longer apply to a class of 800,000 — who, regardless of individual circumstance, are hereby exempt from current law so long as they meet certain biographic criteria. This is not discretion. This is a fundamental rewriting of the law…). Indeed, the take care clause may have been intended to codify the Framers’ repudiation of royal suspending prerogatives. “To contend that the obligation imposed on the president to see the laws faithfully executed implies a power to forbid their execution is a novel construction of the Constitution, and is entirely inadmissible.” — U.S. Supreme Court, 1838
    In 1998, SCOTUS upheld that decision when declaring “there is no provision in the Constitution that authorizes the president to enact, to amend, or to repeal statutes.” Obama is wielding what the Constitution forbids and no statute can grant — a line-item veto, which violates the presentment clause. The Constitution says “every bill” passed by Congress shall be “presented” to the president, who shall sign “it” or return “it” with his objections. The antecedent of the pronoun is the bill — all of it, not bits of it. Even Obama agrees: “With respect to the notion that I can just suspend deportations [of immigrants brought here illegally as children] through executive order, that’s just not the case, because there are laws on the books that Congress has passed.” — President Obama, March 28, 2011 and those laws on the books then, before his Presidency, remain on the books. They have not changed. Yet Obama suspended these very deportations — granting infinitely renewable “deferred action” with attendant work permits — thereby unilaterally rewriting the law.
    Americans – as a culture, not legal status – regard Obama’s aggressive assertion of enforcement discretion as idiosyncratic — a long standing very public anti-Constitutional, anti-American, impatience arising from his vanity. This interpretation is encouraged by Obama’s many assertions that he “can’t wait” for a long standing system of legislative authority granted by the people in a Democracy, separated powers as with the Judiciary and Rule of Law to ratify his personal policy preferences. Still, to understand not only the extravagance of Obama’s exercises of executive discretion but also how such discretion necessarily grows as “his” government does, read Zachary S. Price’s “Enforcement Discretion & Executive Duty” in the Vanderbilt Law Review and available online. Price, a visiting professor at the University of California’s Hastings College of the Law, demonstrates that the Constitution’s “text, history, and normative underpinnings” do not justify the permissive reading Obama gives to its “Take Care Clause”, which says the president “shall take care that the laws be faithfully executed.”
    Congress’s, and the Administrative, excessive expansion of the number of federal crimes, however, has required the husbanding of scarce prosecutorial and judicial resources, which has made enforcement discretion central to the operation of today’s federal criminal justice system. But Obama’s uses of executive discretion pertain to the growth of “his” administrative state.
    The danger, Price says, is that the inevitable non-enforcement of many federal criminal laws will establish “a new constitutional norm of unbounded executive discretion” beyond the criminal justice system. Price says the enforcement discretion exercised in the context of the resource-constrained criminal justice system provides “no support for presidential authority to decline enforcement with respect to any other given civil regulatory regime, such as the Affordable Care Act.”
    The difference is between priority-setting and policy-setting, the latter being a congressional prerogative because of Congress’s primacy in lawmaking. Absent “a clear statutory basis, an executive waiver of statutory requirements” is “presumptively impermissible.” Waivers not only of Price’s ACA/Obamacare illustration, but even before he decreed alterations of key ACA provisions — delaying enforcement of certain requirements for health insurance and enforcement of employers’ coverage obligations — he had effectively altered congressionally mandated policy by altering work requirements of the 1996 welfare reform; and compliance requirements of the No Child Left Behind [extremely bi-partisan] education laws; Common Core creeping into specified political educational content; IRS focused moves into auditing the prayers and tax status of Obama’s political enemies; EPA’s check garnishing & galactic expansion of the Clean Water Act; DOE’s death causing energy delays (Keystone & BNSF is not alone); some enforcement concerning possession & sale of controlled substances; the prosecution of drug crimes entailing mandatory minimum sentences; the use of health insurance and patient-doctor/priest/lawyer privileges to instigate 2nd Amendment proxy regulations; and the enforcement of immigration laws, not solely those pertaining to some young people. Just look at the border, and the billions in funds requested in caring for the current wave of hundreds of thousands of pre-election bodies.
    This smacks not of administrative duties or human compassion but of trying to create a nation-wide political machine like Chicago. Government funds, as with Obamacare, will go to Obamacrat community organizers. Lawyers, NGO’s, healthcare & social workers, education employees… all those lined up at the Democratic Party trough for the 2014 elections now being organized for the 2016 national elections at tax payer expense. And all under the pattern of Race Baiting that this Administration and Alinsky playbook will continue to use as Holder investigates select law enforcement agencies after the fermented Ferguson Mo Crisis. Never let a good Race Crisis, Border Crisis or Constitutional Crisis go to waste!

    • Betty J Rousey

      And did you not wonder why Congress did not address the problem? For I certainly did… I wondered why they didn’t do a LOT of things necessary to running our government…

  • BowenG

    The letter states, “A serious legal question would arise if the administration were to halt all immigration enforcement, because in such a case the justification of resource limitations would not apply. But the Obama administration to date appears to have enforced the immigration law significantly through apprehensions, investigations, detentions and over two million removals.” This is outright fraud as the increase in “Deportations” is really just an Administrative numbers game where ‘Apreshensions’, even those along the border, as well as ‘Catch & Release’, were just moved into another column to make the volume appear as though something along the lines of law enforcement was actually being implimented. Illegal Alien bodies removed from U.S. soil has gone way down, and the release of thousands of known Illegal Alien criminals back on to U.S. soil has gone way up.

  • solotar

    Gee, all these left-wing professors support Obama and say what he’s doing is entirely legal? Wow, I have to re-think my opposition to mass amnesty by Presidential fiat. I had no idea so many distinguished Ivy League professors were on the other side of the issue.

    P.S. How many of these professors would vote for Che Guevara if given the chance? More importantly, how many of these professors enroll their kids in lower class neighborhood schools flooded with illegals?

    • Betty J Rousey

      What did you say when Reagan did this?

      • kershlash

        Ummm, Reagan presided over a congress that passed amnesty in 1986. It was SB 1200. A bill that Joe Biden voted against so he must have hated illegal immigrants by your standards. Although it was failed amnesty legislation, it was the correct way to go about things, constitutionally speaking. Obama is doing the exact opposite; he is circumventing congress via executive fiat. Do you really think one guy is more representative of America than the 535 members of congress? Don’t worry, I didn’t know this information either until this topic became popular so I did my research. You should too before you start reiterating the erroneous headlines that you read.

  • Ali Alexander

    Problem is, though, at what point do the President’s actions cease to be “prosecutorial discretion” and cross over into nullifying existing laws? Would the author argue that the President could extend an Executive Order to ALL illegal aliens? That would clearly nullify the law passed by Congress. So, where short of that does “prosecutorial discretion” end and nullification begin?

    • smack buoy

      quote..

      “The Constitution states: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Constitution of the United States, Article I, Section 1. That single sentence leaves the president with zero power to reform our laws. We just elected a new Congress to begin serving in January. Unless the president can show something that somehow trumps or sets aside the Constitution, he’s claiming a power he doesn’t have and usurping the power of Congress.”

      136 law professors apparently don’t understand the basic law of the united states.

  • Carlos Martinez

    It would be interesting to know the political affiliation of the 136 law professors. My guess is the the majority of them are left leaning, like the President. If true, what message can you get from their scholarly conclusions?

    • WarrenHart

      They’re professors so I imagine they’re Democrats like most sane highly intelligent people.

      • smack buoy

        wow does that also explain how the the ‘highly intelligent’ left has also destroyed the country politically, economically and abroad?

        • WarrenHart

          You need to get your head out of FOX (fake) “News” for 5 minutes before it’s to late if it isnt already. WHo was it that invaded the WRONG country under false pretense? Who brought the entire earths economy to it knees and nearly bankrupted our country? Who presided over the destruction of the auto industry? The credit industry? The banking industry? The housing industry? You got this ass backwards. The right has been attempting to destroy the USA for decades and nearly succeeded during the last dumbass Republican president. Do you people take drugs to make you stupid or does it come naturally?

        • smack buoy

          quote..

          “The Constitution states: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Constitution of the United States, Article I, Section 1. That single sentence leaves the president with zero power to reform our laws. We just elected a new Congress to begin serving in January. Unless the president can show something that somehow trumps or sets aside the Constitution, he’s claiming a power he doesn’t have and usurping the power of Congress.”

          136 law professors apparently don’t understand the basic law of the united states. Goodbye credentials

    • Abe

      Just like how the Judge that ruled against executive action is a Texas Republican, what message can you get from his judicial conclusion?

  • Megalith

    Just as the liberals did in the global warming debate, the Obama administration is rounding up the radical communist law professors to get a “consensus” that what Obama did was legal.

  • smack buoy

    quote..

    “The Constitution states: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Constitution of the United States, Article I, Section 1. That single sentence leaves the president with zero power to reform our laws. We just elected a new Congress to begin serving in January. Unless the president can show something that somehow trumps or sets aside the Constitution, he’s claiming a power he doesn’t have and usurping the power of Congress.”

    136 law professors apparently don’t understand the basic law of the united states. Goodbye credibility.

    • WarrenHart

      Where did you get your law degree? You need to get a refund.

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