Friday, December 19, 2014

the more things change . . .

Marty Lederman

At this late date, this surely doesn’t warrant (or deserve) a detailed response, especially since the President has repudiated it and it no longer represents the view of the government.
But for those of you who didn’t follow Balkinization closely back in the last decade . . . no, there wasn’t much serious doubt that certain of the CIA interrogation techniques violated the law.  Waterboarding, in particular–the specific subject of Michael Mukasey’s column–violated the prohibition on “cruel treatment” in Common Article 3 of the Geneva Conventions* (which at the time was also a violation of the War Crimes Act), the federal assault statute, and, yes, the Torture Act.  At a minimum, waterboarding is designed to, and does, result in “severe physical suffering”–that’s the whole point of it, which is why it is a paradigmatic example of torture, understood as such for centuries by virtually everyone who has ever considered it.  (Mukasey does not even address the Torture Act’s prohibition on infliction of “severe physical suffering.”)  For much greater detail on this and related points about the CIA and the law, see my Balkinization posts herehereherehere, and here, and David Luban’s post here.  Better still, read David’s wonderful new book (chapters 7 and 8, in particular).
* The Bush Administration avoided this conclusion by adopting the view that Common Article 3 did not apply to the armed conflict with al Qaeda–an argument the Supreme Court rejected in Hamdan.  As I speculated the morning of the decision, and as the SSCI Report recounts, the Hamdan decision therefore brought the CIA interrogation program to an abrupt halt.

Thursday, December 18, 2014

New Developments in Originalist Theory


Over at the Liberty Law Blog, there is a very interesting symposium responding to Steve Smith's essay on Meanings or Decisions? -- Getting Originalism Back on Track.  Steve is concerned that the turn to original meaning originalism was mistaken, in part because it made possible my fusion of living constitutionalism and originalism in Living Originalism. If people like me can join the original meaning club, he suggests, maybe it isn't worth being a member anymore. He wants to start over with a new term, like "original decisions originalism."

In one sense Steve is right, of course: once originalism moved to a focus on original public meaning and away from a focus on original intentions or original understanding, the distinction between original meaning and original expected applications was inevitable. So too was the intellectual synthesis that I produced in Living Originalism, showing that the best versions of originalism and living constitutionalism were just two sides of the same coin.

In fact, I was by no means the first to spot the likely consequences for original meaning originalism.  Mark Greenberg and Harry Litman made this argument in 1998; a year later Randy Barnett made a similar move, as did Kim Roosevelt in 2006; and of course, Ronald Dworkin's notion of semantic originalism made the point even earlier still.  The major problem for Steve is that going back to something like "original decisions originalism" is just going to dredge up the same problems as earlier versions of originalism that have since been abandoned.

I believe that there is no going back at this point. Originalism and living constitutionalism are now one nation, indivisible (with liberty and justice for all, we hope!)--and originalism, like humanity itself, is condemned to be free.

There are three responses to Steve's essay:  One is by Michael Rappaport, The Original Decision and Abstract Originalism-- An Unbiased Approach to Originalism.  Mike agrees with Steve Smith that my approach should be rejected, but he points out that Steve's move to original decisions won't work very well. Instead, he argues for his and John McGinnis's theory of original methods originalism, developed most fully in their new book, Originalism and the Good Constitution.

Read more »

Hobby Lobby and the question for religious freedom

Andrew Koppelman

Winnifred Fallers Sullivan is arguably the premier scholar of law and religion in the United States. She brings to the field of law an unparalleled degree of sophistication and historical and anthropological knowledge. When she says that all religious freedom laws are rotten at the core, that claim has to be taken seriously.

The core of the problem, she writes, is the distorting effect of the demand that the state distinguish the religious from the nonreligious. The religious life of most Americans, “incredibly varied, creative, and entrepreneurial,” has become so disconnected from the law’s understanding of religion that the law should abandon the use of the category, “religion.”

As Sullivan notes, the Religious Freedom Restoration Act (RFRA)—the basis of the Burwell v. Hobby Lobby suit—was a reaction to the “notorious” Employment Division v. Smith decision, which limited the scope of the free exercise clause of the First Amendment. There are reasons for the notoriety and Smith was widely condemned. RFRA passed by overwhelming margins because most Americans thought that the tradition of specifically religious accommodation was valuable. Since Colonial times, Quakers have been exempted from oath-taking and military service. Catholics were permitted to use sacramental wine during Prohibition.

Our choices are clear: either we sometimes accommodate, or we never accommodate. The argument for the latter option relies precisely on the religious heterogeneity that Sullivan invokes.

I elaborate the argument in a piece just posted on The Immanent Frame, here.

Wednesday, December 10, 2014

The Senate Torture Report: Accounting without Accountability

Jonathan Hafetz

In her speech on the Senate floor marking the Senate Select Committee on Intelligence’s release of its long-awaited report on the CIA’s Torture Program, Senator Dianne Feinstein (D-CA) declared that the report would “show the world that we are in fact a just and lawful society” and a society "governed by law." The Senate report does much, and much that is good, but what it does not do is vindicate either justice or law.

The report provides the most comprehensive examination to date of the CIA Torture Program. Above all, it helps strip away the layers of secrecy and expose the misrepresentations to better inform the American public what actions its government took in the name protecting its security. In that sense, the report serves an informational role vital to a democracy and the deliberative process on which it depends.

But accounting should not be confused with accountability. It is crucial to remember that the torture and other misconduct committed by U.S. officials was not simply immoral, barbaric, and counterproductive. It was also criminal, prohibited under both U.S. and international law. In other countries, detailed investigations into human rights violations helped lay the groundwork for subsequent prosecutions. (Argentina and Guatemala are two examples). But President Obama has already suggested that the Senate report will not cause him to reverse his original decision not to pursue a full criminal investigation. The President called the report’s findings “troubling,” but cautioned against “refighting old arguments” and, once again, urged the country to look forward, not backward.

To be sure, political winds in the U.S. may shift, or another country may prosecute U.S. officials under international law. (Prosecutions under universal jurisdiction have previously been attempted in several European countries). But history, not law, may well be the final arbiter of America’s Torture Program. If so, the report’s main contribution will be the factual record it provides to us now and to future generations.

Much of the information about the interrogation methods was already known, although the report includes many new details (from finding that more detainees had been water boarded than previously acknowledged to describing additional interrogation methods like “rectal feeding” and “rectal hydration”). The report’s more significant findings describe the degree to which the CIA mismanaged the detention program, quashed internal opposition, and misrepresented the program to Congress, to the President and senior administration officials, and to the American public (although, in my view, the report goes too far in absolving others outside the CIA). Most importantly, the report counters, in painstaking detail, the claims that “enhanced interrogation methods” produced valuable intelligence and saved lives, including the claim that such methods helped the U.S. find Osama bin Laden in Pakistan.

The report thus makes a compelling case that torture does not work. Most professional interrogators agree. While I confess to no such expertise, I have represented a number of detainees accused of terrorism and have always found that legitimate methods are the most effective way to get suspects to cooperate. Apologists will continue to defend the Torture Program, as the immediate backlash to the Senate report shows. But even if they could show torture had provided some useful information, it shouldn’t matter. The criminal prohibition against torture does not, and should not, rest on utilitarian arguments. And to the extent it does, it will remain vulnerable to the claims of the next Cheney or Tenet that torture works.

The United States is not the first society to confront the commission of grave crimes by the state. Other countries have committed torture and other atrocities, and done so on a much wider scale. In some instances, they have not opted for a traditional criminal law approach and instead pursued other accountability mechanisms. But, as Kevin Jon Heller observes, even a South-African-style Truth and Reconciliation Commission conditioned amnesty on admission of wrongdoing. Moreover, most other societies confronting a past of systematic, state-sponsored human rights violations are also transitioning from a period or internal armed conflict or a change in their political order. The fear is that prosecutions will derail that process.

While the opposition to criminal prosecutions remains undeniably intense, the U.S. faces no comparable choice between peace and justice. The trade-off is one of politics, not peace. And, so far, politics has trumped law. There are other ways for the U.S. to achieve a measure of accountability, from noncriminal sanctions against those responsible to providing remedies to victims. But to date other accountability mechanisms have been not taken hold. Instead, we are left with accountability through accounting.

And herein lies the Torture Report's central paradox. It is because the Senate report provides such devastating details into the Torture Program that the stakes for the rule of law are now so high. By demonstrating the depth and degree of America’s lawlessness, the Torture Program shines the light even more brightly on law’s absence in addressing the crimes of the past.

Saturday, December 06, 2014

"Opinions on the Shape of the World Differ" Legal Reporting

Mark Tushnet

From a New York Times story by Julia Preston with the headline "Experts See Legal Hazards in States' Immigration Suit":
Several lawyers said the states could have a hard time convincing the federal courts that they could suffer specific harms as a result of Mr. Obama’s actions. Those harms are the legal foundation for them to bring the suit. 
“The injury the states are alleging seems a bit speculative,” said Cristina Rodriguez, a professor of immigration and constitutional law at Yale Law School. “In many ways this is a political document,” she said of the suit, adding, “It feels more rhetorical than legal.”
Others counter that the suit is sound. Jay Sekulow, chief counsel of the American Center for Law and Justice who has argued several cases involving conservative causes before the Supreme Court, said that Mr. Obama had gone far beyond the bounds of executive discretion and that the lawsuit would demonstrate that. “The scope and breadth of what the president has done is so impressive that it changes the dynamic dramatically,” he said.
It's exam time, so here's a question (actually, not entirely non-serious) for our students: In what sense is "The scope and breadth of what the president has done is so impressive that it changes the dynamic dramatically" a legal argument, even one simplified for public consumption?

Call for Papers: Sesquicentennial Conference -- The Thirteenth Amendment through the Lens of Class and Labor

Guest Blogger

Rebecca Zietlow

Call for Papers: Sesquicentennial Conference -- The Thirteenth Amendment through the Lens of Class and Labor

Approaching the 150th anniversary of the Thirteenth Amendment, we find ourselves in a period of heightened concern about issues of economic inequality. If any provision of the United States Constitution speaks to those issues, it is the Thirteenth Amendment. The Amendment’s proponents maintained that it established “freedom” and a “free labor system,” a view eventually accepted by the U.S. Supreme Court. Beginning after the turn of the millennium, Congress has drawn on the Amendment to support legislation outlawing the “new slavery,” including – for the first time – forms of labor control other than physical force or legal compulsion. Conversely, state governments have cited
 the Amendment’s punishment clause to justify forced labor by prisoners in a rapidly growing archipelago of private prisons and prison industries.

Paper proposals should focus on the Thirteenth Amendment and include class or labor as an important theme. Proposals addressing the relations (including relative priorities) and intersections of race, gender, and sexual orientation with class or labor are strongly encouraged. Proposals should be e-mailed to by January 10, 2015. We anticipate that the papers will be published in a law review symposium issue.

The Thirteenth Amendment Through The Lens of Class and Labor Conference is sponsored by the Fred T. Korematsu Center for Law and Equality at the Seattle University School of Law, the Seattle University School of Law, and the University of Washington School of Law. The conference will be held at the Seattle University School of Law on May 31- June 1, 2015, immediately following the annual meeting of the Law & Society Association. 

Planning Committee for the Sesquicentennial Conference on the Thirteenth Amendment through the Lens of Class and Labor:
Charlotte Garden (Seattle University School of Law)

Darrell A.H. Miller (Duke University School of Law)

Maria Linda Ontiveros (University of San Francisco School of Law)

James Gray Pope (Rutgers University School of Law)

Aviam Soifer (William S. Richardson School of Law)

Lea VanderVelde (University of Iowa College of Law)

Ahmed White (University of Colorado School of Law)

Rebecca E. Zietlow (University of Toledo College of Law)

Wednesday, December 03, 2014

The Bill of Rights Reconsidered

Gerard N. Magliocca

The draft of my revised paper on the history of the Bill of Rights is available for download here.

Wednesday, November 26, 2014

Concluding Thoughts: Line Drawing, the Separation of Powers, and the Responsibilities of the Political Branches

Guest Blogger

Adam B. Cox & Cristina M. Rodriguez

For the Symposium on Administrative Reform of Immigration Law

Before we weigh in with our final thoughts, we would first like to thank Jack Balkin for generously making this forum available to us, to explore the implications of President Obama’s latest and sweeping use of his executive authority to reform immigration law. We also are indebted to the wonderful collection of scholars and attorneys who contributed their thoughts, almost in real time, to a debate that is sure to continue and that has potentially profound implications for law enforcement and the administrative state. Encountering the number of different ways “in” to our central question—whether the President acted within the relevant legal authorities—has been fascinating and highly educational.

Though our own central preoccupation has been with the separation of powers dynamics reflected in this latest episode of presidential action, we also are mindful of the human and family interests at stake and the considerable work that remains to be done, by both of the political branches and the American people, to build a just and effective system of immigration law and enforcement. Happy Thanksgiving to all.


There is widespread agreement that the Executive Branch may exercise prosecutorial discretion in individual cases, incorporating humanitarian factors and efficiency concerns into its judgments about which cases to pursue. And there is nearly universal agreement that the President may not decline to enforce the law, or “rewrite” Congress’s laws, to put it in terms used by OLC. But the vast space between these two poles is where the debate over the President’s initiatives lies.  Over the last several days—both on this blog and around the nation—that debate has crystalized around four central questions concerning the legality of the administrative relief laid out by President Obama last Thursday. 

(1) To be lawful, must relief be closely tied to statutorily articulated congressional priorities?

(2) Is it permissible for prosecutorial discretion to be exercised “categorically,” or must it proceed on a “case-by-case” basis?

(3) Does the fact that the President’s actions extend a benefit—work authorization—rather than just withhold a sanction affect their legality?

(4) Is the relief simply too big in scope to constitute a lawful exercise of prosecutorial discretion?

The first two arguments have played a big role in nearly everyone’s analysis of the President’s actions—including OLC’s—while the second two have been peripheral.  This is somewhat surprising, because in the days and months leading up to the President’s announcement, questions three and four dominated the debate; critics of what was to come seemed most exercised about the sheer scale of any potential relief program, and about the decision to authorize unlawfully present immigrants to work.

We do not yet have a good account of why questions three and four have receded, though one possibility is that the work authorization question quickly came to be seen as a matter of  straightforward statutory delegation (for the reasons Marty Lederman echoes in his last post), while the question of permissible scale came to seem utterly intractable.

We are not yet sure that either of these conclusions is quite correct. On the scale question, in particular, we think one strain of the debate that attempts to allay concerns about size is incomplete. Just as we think that resource constraints are not a necessary condition for the exercise of prosecutorial discretion, we do not think their presence is a sufficient justification for a deferred action program. Accordingly, we are not fully persuaded by the one theory of scope that emerges from the OLC opinion and that Steve Legomsky and Marty Lederman have made more explicit.  On that theory, if the President only has the resources to remove up to 400,000 people per year, then deferring the deportation of millions cannot amount to an abdication of his duty, because the President will continue to consume all of the enforcement resources that Congress has allocated. This response has the virtue of being elegant, but it also proves too much.  Short of granting relief to nearly all 11 million unauthorized immigrants, the President will always be able to use up the enforcement resources appropriated by Congress. But because the resources it takes to deport a person almost certainly increase as the pool of deportable persons shrinks, these resources will be consumed identifying and deporting a smaller and smaller number of people.

For purposes of this final post, however, we’d like to put aside questions of scope and work authorization to focus on the two issues that fostered the most debate in this symposium.
Read more »

Tuesday, November 25, 2014

Even if it’s lawful . . . should we be concerned that it might set a dangerous precedent?

Marty Lederman

[For the Symposium on Administrative Reform of Immigration Law]

Let’s assume OLC is correct that the new Obama/DHS immigration initiative complies with all of the relevant immigration laws.  Even so, was it unwise, or regrettable, for the President to go down this road because the exercise of the sort of enforcement discretion at issue in this case might set a dangerous precedent that future executives could exploit?  I addressed this question briefly in Point 7 of my original post.  Several commentators, however—include some who are quite sympathetic to the substance of the President’s initiative—continue to be anxious about what the new initiative portends for the future.  Which is understandable:  After all, who among us would be entirely comfortable with a common practice in which an executive agency invokes "enforcement discretion" as a ground for declining to enforce statutes that it (or the President) disfavors on policy grounds?  

I thought it might therefore be worthwhile to examine the question a bit more closely.  I hope that what follows might, at least in part, allay such concerns about whether the new immigration policy would establish a dangerous precedent.

It’s nothing new:  But does that make it even worse?

In my earlier post I stressed a point that many other supporters of the immigration initiative have also emphasized—namely, that this can’t be a groundbreaking precedent because it’s nothing new under the sun:  Executive agencies establish these sorts of broad, categorical enforcement priorities all the time.  Moreover, in doing so, agencies often assign “low priority” to enforcement of certain laws because they consider (or the sitting President considers) those laws to be unwise, or immoral, or trivial, or a waste of precious resources, or treading upon important constitutional values (even if it is not actually unconstitutional). 

To tick off only a few conspicuous examples:  Most administrations have in recent decades brought virtually no obscenity prosecutions (often channeling many of their resources to child pornography cases instead).  Few if any prosecutions are initiated for marijuana possession—even, recently, in Colorado and Washington, where state law does not pick up the slack.  And the Civil Rights Division in recent Republican Administrations has largely eschewed bringing disparate impact discrimination cases.

Most analogous to the current example, perhaps, are the "desuetude" cases, in which executives rarely prosecute laws that have lost most of their popular support (even if there is not sufficient political wherewithal to repeal them).  See, e.g., Poe v. Ullman, 367 U.S. 497, 502-03, 508 (plurality opinion) (1961) (Connecticut practice respecting ban on contraceptive use); Lawrence v. Texas, 539 U.S. 558, 573 (2003) (describing "pattern of nonenforcement" of sodomy laws "with respect to consenting adults acting in private").  Or cases in which everyone knows that enforcement is rare, bordering on nonexistent, in particular applications, which establishes a new norm of behavior by the regulated actors--think, for example, of police not enforcing a 55-mile-an-hour speed limit for persons driving under 65 or so.

In a recent post, Mike Dorf acknowledges that this sort of selective, categorical disfavoring of enforcement of particular laws is a common practice—but in his view that’s all the more reason to be concerned about adding the new immigration removal policy to the list, because the common practice is something to be bemoaned, not emulated:  “[T]here is a legitimate question,” he writes, “of whether this policy and many others pursued in the past by presidents of both parties push the notion of prosecutorial discretion too far.”  In other words, perhaps this new immigration policy will only exacerbate a serious preexisting problem.  

In particular, Mike worries that a decision “not to enforce a law at all in the face of a contrary congressional judgment . . . would be a serious threat to separation of powers."  Accordingly, Mike writes that "to the extent that Obama's immigration policy ends up being used politically as a precedent for truly dangerous executive overreach by a future (Republican or Democratic) president, I worry that my friends who signed a scholars' letter that makes the same sorts of measured arguments found in the OLC memo may live to regret doing so.”

In his very thoughtful contribution to this symposium, my former OLC colleague Zach Price echoes Dorf's concern:  “[I]n the long run,” Zach writes, “Democrats may have more to fear than Republicans from erosion of norms against policy-based non-enforcement.  Amid our deeply polarized politics, Democrats are the party more committed in principle to the value of regulation in improving social welfare and restraining undue private power.  Non-enforcement is a fundamentally deregulatory power:  it is a power to strip force from statutory requirements though executive inaction.  Republican Presidents have used it as such in the past.  Democrats should worry about how they might use it in the future.”

And in a comment to Mike Dorf’s post, Mike's colleague Steve Shiffrin offers some examples of the sort of thing he, Mike and Zach are worried about:  What if President Reagan had gone ahead with his suggestion of not prosecuting those who do not pay their capital gains taxes?  Or what if the next Republican administration opts not to prosecute Affordable Care Act objectors who refuse to maintain insurance or pay the tax the Court upheld in NFIB v. Sebelius?  Steve asks:  “Would the principles of the Obama policy permit a Republican President to engage in this form of prosecutorial discretion?” 

There are, I think, several reasons why perhaps Mike and Zach and Steve—and the rest of us—should not be so concerned that the new immigration policy will establish such a worrisome precedent.
Read more »

Why Can't Deferred Action Be Given to Parents of the Dreamers?

Guest Blogger

Steve Legomsky

For the Symposium on Administrative Reform of Immigration Law

Most of the OLC opinion is the model of careful research, sound analysis, and clear expression.  And then you get to the third section, in which they declare that deferred action could not legally be granted to a class of individuals consisting of the parents of DACA recipients.

I have to say I found this section of the opinion simply extraordinary.  Their conclusion rests entirely on a legal premise that they invent out of thin air and make no serious attempt to – and cannot – support.

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The President’s Relief Program as a Response to Insurrection

Guest Blogger

Ahilan Arulanantham

For the Symposium on Administrative Reform of Immigration Law

At first glance, it is easy to understand why critics of the President’s new administrative relief program do not see it as merely an exercise of prosecutorial discretion. The administration has done far more than merely “prioritize” the deportation of some undocumented immigrants over others. The new program provides documentation to those who are de-prioritized – something akin to a license that lasts for three years, during which line-level enforcement agents cannot deport people who have the license absent unusual circumstances and high-level supervisory approval. In this respect, the new program fundamentally differs from prosecutorial discretion policies that might, for example, de-prioritize criminal prosecutions of people arrested with small quantities of marijuana. It’s more like a program to give people licenses to possess marijuana for three years, notwithstanding Congress’s decision to ban its possession.

Could the President create such a program? I’m not sure, but whether or not he could might turn in part on whether more traditional measures to prioritize resources had failed. What if DEA agents and U.S. attorneys defied an Attorney General’s directive on marijuana, and continued to arrest and prosecute low-level possession offenders even after being told not to prioritize such cases? Would the administration be justified in creating a marijuana license scheme under those circumstances, where there was no other way to force law enforcement agents to focus on the administration’s priorities?

As it turns out, that hypothetical is highly relevant here. Although you will not find it discussed either in the administration’s public statements or in its OLC memo, the new administrative relief program arises out of a historical context of defiance – some would say insurrection – by ICE enforcement agents and attorneys who essentially refused to implement prior directives on prosecutorial priorities.

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Two Cheers for OLC’s Opinion

Guest Blogger

Zachary Price

For the Symposium on Administrative Reform of Immigration Law

            There is much to cheer in OLC’s careful opinion, but nonetheless cause for concern about the precedent the administration has set.

            Let me say at the outset that as a policy matter I support the President’s action and find Congress’s inability to provide immigration relief incomprehensible.  I view this issue, however, as one instance of a recurrent separation-of-powers problem that arises across many areas of regulation:  What authority do Presidents have not to enforce laws for policy reasons?

From that perspective, the most important thing the OLC opinion does is to cabin this precedent to the immigration context—and the most significant risk it poses is that this effort will not prove successful.
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The Realities of Administrative Discretion

Guest Blogger

Christopher H. Schroeder

For the Symposium on Administrative Reform of Immigration Law

Under our constitutional system of separation of powers, does the President have the authority to defer the deportation of the undocumented parents of children who are lawfully present in the United States, to permit these persons to apply for work authorization and also to expand the Deferred Action for Childhood Arrivals first announced in 2012?  Or is the President violating the Constitution by refusing to execute the immigration laws?

Here are three reactions to these questions. 

First, these two questions are not opposite sides of the same coin.  Whatever answer you give to the first question, the answer to the second one is a resounding NO.  The allegation that the President is violating the Constitution rests on the claim that he is violating his duty to take care that the laws be faithfully executed.  That depends crucially on what it means to “faithfully execute” a law.  In 1823, Attorney General Wirt wrote that the duty requires that the law be executed “not with perfect correctness of judgment, but honestly.”   That description makes the best sense of the language of the Constitution; it reflects the wisdom of the Founders who were practical people fully aware that all humans, including Presidents, are fallible; and it appreciates the background understandings of the time. 

The 33 page legal opinion issued by the Department of Justice’s Office of Legal Counsel analyzes options available to the President in executing the existing immigration laws.  It is a careful and thorough analysis.  I find it a convincing defense of the President’s actions, but even if you don’t agree, this only establishes that people can have honest disagreements over how to interpret a statute.  (For the views of one very distinguished administrative law professor who disagrees with my assessment of the OLC opinion, see Peter Schuck’s op-ed in the NYT.)  That is enough to secure a negative answer to the second question posed above.

Nonetheless, the President’s critics – and especially the House Republican majority – want to wage a major battle with the President over the extent of his executive authorities, his ability to “run around Congress,” to behave as an emperor or king, or to “shred the Constitution.”  My second response is that the OLC opinion demonstrates that the President’s immigration actions are going to be a very poor field on which to wage that battle.  The question of the legality of granting deferred action and making application for work authorization available to 4.4 million undocumented is, as a legal matter, a garden variety administrative law question of the extent of the discretion that has been delegated, originally to the Department of Justice and later by transfer of authority and additional legislation to the Department of Homeland Security.   A court might find that DHS’s deferred action directive is outside the scope of its statutory authority.  I doubt it, but let’s assume that is possible.  If it does, then the action will be consigned to the pile of agency actions that have been overturned by courts over the years as exceeding their authorities under the relevant statutes.  To my knowledge, in none of these prior decisions has a court ever even contemplated the question of a constitutional violation by the President.  A court would not go there this time around, either.
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Concerns about a Troubling Presidential Precedent and OLC’s Review of Its Validity

Guest Blogger

David A. Martin

For the Symposium on Administrative Reform of Immigration Law

            The OLC opinion on new enforcement priorities for the Department of Homeland Security probably will serve to establish the terrain for battles over the legitimacy of prosecutorial discretion for a long time to come.  And there will be other battles. You can bet that Republican Presidents someday will try to invoke President Obama’s actions to undercut other regulatory programs they don’t like.  

            The opinion actually raises significant questions about the Obama Administration’s own signature exercise of expansive prosecutorial discretion, the 2012 DACA program that shields childhood arrivals from deportation.  And it is disingenuous about key elements of its reasoning and its analysis of the new programs in operation.  OLC’s decision factors are fine, but they should be – and should have been – applied with more rigor, lest prosecutorial discretion become a vehicle to “rewrite the laws.”  (This in-the-weeds slipperiness is why I am not at all confident that the precedent can be confined in the way, for example, that Marty Lederman opines.)
Read more »

Monday, November 24, 2014

Refocusing the Debate on Policy, Not Legal Authority

Guest Blogger

Alina Das

On November 20, 2014, President Obama announced his long-awaited plan for executive action on immigration reform. As someone who represents immigrants who face deportation under the current system, I appreciated the President’s observations regarding the “hypocrisy” and “cruelty” of our broken immigration laws. The Supreme Court has aptly equated deportation to “the loss of all that makes life worth living,” yet we have deported millions of people (well over 2 million during the Obama administration alone) without providing them with a right to counsel or a meaningful opportunity to present the facts of their case to a judge. The President’s plan for executive action does not solve these problems, but it does include an effort to provide some immigrants with a temporary reprieve from deportation, to prevent family separation while Congress debates longer-term approaches to comprehensive immigration reform.

Despite the political controversy over the President’s actions, the legal basis for President Obama’s plan is well established. As explained in a memorandum from the Office of Legal Counsel, Congress has delegated broad authority over enforcement priorities to the Executive Branch through the Immigration and Nationality Act. This authority encompasses acts of prosecutorial discretion, which the Supreme Court has recognized as recently as in 2012 to be a “principal feature of the immigration system.” A longstanding application of such prosecutorial discretion in the immigration context is “deferred action,” which provides a temporary reprieve from deportation and the ability to apply for work authorization, subject to revocation.  Deferred action and similar forms of prosecutorial discretion have long been explicitly referenced in federal statutes like the Immigration and Nationality Act, the USA PATRIOT ACT, and the REAL ID Act; in federal regulations; and in decades-old policy memoranda. Indeed, every president as far back as President Eisenhower has used some form of prosecutorial discretion to protect groups of individuals from deportation or exclusion from the country.

In light of the Executive Branch’s broad authority to engage in prosecutorial discretion, the scope of President Obama’s plan to expand deferred action is rather modest. As several commentators have noted, President Obama’s plan is not so different from President Georgie H. W. Bush’s Family Fairness program in 1990—executive action that, at the time, prevented the deportations of over 40 percent of the undocumented population. President Obama’s new plan similarly attempts to reach approximately 4-5 million of the 11-12 million undocumented immigrants living in this country.

Nonetheless, critics of President Obama’s plan have argued that he has engaged in an unconstitutional “power grab.” While most immigration law scholars maintain that such assertions are unfounded, a few have argued that the President may have arguably violated his constitutional duty to “faithfully execute” the laws. Such arguments are generally premised on the idea that the President is “legalizing” immigrants contrary to the dictates of Congress.  However, the President has not announced a policy of legalization. The decision whether or not to deport an individual—a penalty—is not the equivalent of a decision whether or not to confer legal status such as permanent residency (either through affirmative grant or waiver) or citizenship. The Supreme Court has explicitly observed that nonenforcement decisions are a “special province of the Executive Branch.” And this is for good reason, given the potentially harsh, disproportionate, and counterproductive consequences of enforcement in some cases and the limited resources that the President has been given to administer the law in various contexts.

Indeed, in this respect, the memorandum from the Office of Legal Counsel may have been too conservative in its estimation of the President’s authority in the immigration context. The memorandum concluded that the President could not use his authority to extend deferred action to the parents of previous deferred action recipients. However, the family unity concerns expressed in the Immigration and Nationality Act are not exclusively limited to those whose family members already have lawful status in the United States. The Immigration and Nationality Act also includes humanitarian-based waivers and other forms of discretion that permit considerations of family ties without regard as to whether those family members are U.S. citizens or lawful permanent residents. Family unity is a value that exists separate and apart from status, and its promotion through broad deferred action is consistent with the legal authority delegated to the President.

The rest of the debate appears to be a question of policy disagreements, rather than legal authority. These disagreements do not all go in one direction. For example, the President emphasized his efforts to use his executive authority to focus increased enforcement at the border and against individuals who fall under an amorphous “criminal” label—policies that will no doubt lead to many of the same problems that we have previously seen involving family separation, deportation without due process, and abuses at the border. I do not agree with these aspects of the President’s planned use of executive authority. When we divide up immigrant communities into the “deserving” and “undeserving,” everyone suffers. This is not only because the “underserving” share so many characteristics of the “deserving”—including having family ties and significant contributions to our country—this is also because the very existence of an “undeserving” category serves as a justification for the programs of mass deportation and detention that have proven to be so deeply problematic for our country as a whole. The only way to ensure a fair and just system is to provide everyone with a meaningful opportunity to be heard on the facts of his or her case—without exception.

That being said, these are issues for public debate. The public would be far better served by those who disagree with President Obama’s policies if the critics addressed these concerns on their own merits, rather than cloaking their disagreements in a strained legal challenge to the President’s authority to exercise his prosecutorial discretion.

Alina Das is Associate Professor of Clinical Law, NYU Law School. You can reach her by e-mail at DasA at

Must Enforcement Discretion be Exercised Case-by-Case?

Guest Blogger

Gillian Metzger

For the Symposium on Administrative Reform of Immigration Law

Along with others I believe the new immigration initiative is a constitutional exercise of DHS’s broad discretion over enforcement of the immigration statutes.  The Office of Legal Counsel opinion provides an impressive and careful assessment of the initiative’s legality.  OLC deserves credit both for making the opinion publicly available and undertaking to identify the metes and bounds of constitutional exercises of enforcement discretion.  

OLC identifies four principles as delimiting the permissible scope of enforcement discretion, two of which strike me as meriting special emphasis.  The first is the requirement that enforcement decisions must comport with statutory policies and cannot represent a surreptitious attempt by the executive branch to rewrite the statutes at issue.  The second—the constitutional bona fides of which I question—is that “a general policy of non-enforcement that forecloses case-by-case discretion poses special risks that the agency has exceeded the bounds of its enforcement discretion.”  (OLC Op. at 7).

A requirement that enforcement decisions must constitute good faith efforts to implement governing statutes (assuming those statutes are constitutional) strikes me as a no brainer.  This is the minimum constitutional demand imposed by the Take Care Clause’s requirement of faithful execution of the laws.  Whether such good faith efforts preclude invocation of presidential priorities when these priorities are compatible with underlying statutes is a harder question, as Adam Cox and Cristina Rodriguez suggest.  More generally, the principle that enforcement discretion must comport with statutory policy is not what’s in dispute.  Instead, it’s OLC’s application of this requirement — on the one hand, to uphold DHS’s proposal to grant deferred action status to parents of U.S. citizens or legal permanent residents, despite estimates that this may shield up to four million immigrants from deportation; and on the other, to conclude that it would be impermissible to grant deferred action status to parents of beneficiaries of the 2012 DACA program.

Still, the initiative’s statutory underpinnings are a critical feature of OLC’s analysis, and to my mind an important and appropriate one.  As Marty Lederman notes, rather than asserting inherent presidential power, OLC’s assessed DHS’s proposed actions entirely through the prism of delegated statutory authority.  That statutory focus will be a central factor in determining the opinion’s impact in future contexts.

OLC’s suggestion that exercises of enforcement discretion must preserve an opportunity for case-by-case determinations is much harder to justify.  OLC invokes lower court decisions in support of such a case-by-case requirement, but these decisions address a different issue, namely whether an agency’s adoption of a general enforcement policy should be deemed discretionary action that is presumptively exempt from judicial review under the Administrative Procedure Act.  The two questions are significantly distinct; it’s well-established that an agency decision can be judicially reviewable yet nonetheless constitute a legitimate exercise of discretion.  Moreover, at most these decisions identify case-by-case determinations as enforcement discretion’s paradigmatic form.  But that is a far cry from concluding that a purely general policy alone cannot qualify.

OLC also suggests that a case-by-case outlet is important to guard against the executive branch trumping statutory policy, however the basis for this connection isn’t obvious to me.  Nothing in the categorical nature of an enforcement policy entails that it will be more likely used to defeat statutory policies rather than enforce them.  Insofar as categorical policies make enforcement choices more transparent and better constrain low-level discretion, they actually represent an important mechanism for enforcing adherence to governing law.   To be sure, the Supreme Court has indicated that exercises of discretion in the immigration context may statutorily require “some level of individualized determination.”  (Reno v. Flores, 507 U.S. 292, 313 (1993)).  That would support OLC’s emphasis on opportunities for individualized determinations under the initiative, but doesn’t justify a broader principle that all constitutional exercises of prosecutorial discretion must have a case-by-case element.

Most importantly, an insistence on preserving case-by-case assessment ignores the constitutional values served by categorical enforcement policies.  Meaningful supervision over case-by-case removal decisions is hard.  Precluding prospective and categorical articulation of immigration enforcement priorities is thus tantamount to insisting that nonenforcement decisions must be made by lower-level officials.  Such a requirement stands fundamentally at odds with our constitutional structure, which I have argued embodies a duty to supervise exercises of delegated power.  On this view, by openly stating a generally applicable policy and instituting an administrative scheme and guidance to implement that policy, President Obama and Secretary Johnson were fulfilling their constitutional duty.  This positive constitutional case for categorical enforcement oversight deserves greater weight in assessing the initiative’s constitutionality.

Gillian Metzger is Stanley H. Fuld Professor of Law at Columbia Law School. You can reach her by e-mail at gillian.metzger at

Playing Politics with the Office of Legal Counsel

Bruce Ackerman

For the Symposium on Administrative Reform of Immigration Law

Illegal Immigration v. Islamic State: I didn't have space in my Los Angeles Times essay to reflect on a second salient difference between Obama's recent unilateral engagements on these two different fronts.

This contrast reveals a politically-inspired manipulation of the Office of Legal Counsel.

The OLC immediately published a careful 33 page opinion  in support of the president's executive order on immigrants; but it has entirely failed to explain why he can defy the ninety-day time limit imposed by the War Powers Resolution, and continue on-going "hostilities" against the Islamic State despite his failure to obtain the consent of Congress.

To be sure, the White House has asserted that the Congressional Resolutions obtained by President Bush in 2001 and 2002 can be stretched to cover Obama's current campaign.  But these assertions are not to be confused with a serious opinion, like the one OLC just issued on immigration, which confronts the formidable counter-arguments against the president's bare assertion of war-making authority.

For example, in the aftermath of 9/11,  President Bush initially demanded authority “to deter and preempt any future acts of terrorism or aggression against the United States”  (my emphasis). But Congress refused to grant Bush this carte blanche. It only authorized him to attack states and groups involved in the assault on the Twin Towers and the Pentagon --  requiring future presidents to return for a new authorization if they choose, as Obama has done, to open up a new front in the war on terror. 

As I showed in a previous post on Balkinization, there is clear legislative history that Congress sought to deny the very authority that Obama has now claimed under the 2001 Resolution. At the very least. a serious OLC opinion would have to explain why this history does not bar the President from his latitudinarian interpretation of the 2001 text. In muzzling the OLC, the President is breaching a fundamental principle of the rule of law, requiring public accountability for his violation of the democracy-forcing mandate of the War Powers Resolution,

The central importance of this rule-of-law principle has been recognized by Obama's OLC itself.  In a 2010 memorandum on best practice,  David Barron,  then the Acting Assistant Attorney General, explained that:

"in deciding whether an opinion is significant enough to merit publication, the Office considers such factors as the potential importance of the opinion to other agencies and officials in the Executive Branch, the likelihood that similar questions will arise in the future; the historical importance of the opinion, or the context in which it arose; and the continuing significance of the opinion to the Office's overall jurisprudence. In applying these factors, the Office operates from the presumption that it should make its opinions fully and promptly available to the public." [Memorandum, at p. 5]

To be sure, Barron's memo then goes on to say that "national security" might serve as a "countervailing" factor. [Id.] But this caveat did not prevent the Administration from publishing an edited version of Barron's OLC opinion on drone warfare  to obtain his Senate confirmation as a judge on the First Circuit. It should not prevent the publication of a similar opinion supporting the legality of Obama's war on ISIS, when so much more is at stake.

Given the OLC's asserted "presumption" in favor of publication in cases like this, there is only one fair conclusion to draw from its continuing silence. If its opinion were issued, it would only serve to confirm the hostile reception that Obama's assertions have provoked from serious constitutionalists of all political persuasions -- creating another political hailstorm for the president as he continues to defy the commands of the War Powers Resolution.

To conclude:  when the President has a strong legal case, as in his immigration order, he tells the OLC to proclaim it to the world; when he doesn't, he tells it to shut up. The best way for the legal community to respond to this maneuver is to apply a presumption of illegality whenever the president -- or any future president -- engages in such transparently political manipulations.

Obama is not the first president to play politics with the OLC. I trace the office's increasing politicization over the past decades in my Decline and Fall of the American Republic. But in voting for him twice, I had expected our law professor-president to bring the Office back to its origins as a serious guardian of legality within the executive branch.  He has failed; and the best way to respond is with this rule: Whenever the Office of Legal Counsel violates its own presumption in favor of publication, Americans should answer by presuming the illegality of a seriously contested decision.

Like the Emancipation Proclamation, Obama's order forces democracy

Guest Blogger

Bruce Ackerman

For the Symposium on Administrative Reform of Immigration Law

Abraham Lincoln's Emancipation Proclamation provides the foundational precedent for President Obama's executive order on immigrants in the country illegally.

Before Lincoln issued his pronouncement in September 1862, congressional majorities had expressly affirmed that the war effort only aimed “to preserve the Union” without “overthrowing … established institutions” in the rebel states. The proclamation was an act of executive unilateralism, and as Obama has done in his order, Lincoln limited its scope in recognition of this fact. As a result, both proclamations serve only to initiate, rather than preempt, further democratic debate and decision.

Lincoln did not try to free any blacks in the four slave states that remained loyal to the Union. Nor did he even liberate slaves in the Southern areas under federal control. Instead, the proclamation only affected those areas that remained in active rebellion on New Year's Day 1863.

Even where it applied, it did not commit the country to unconditional emancipation. Lincoln acted only in the name of “military necessity,” leaving it unclear whether Southern states could constitutionally reinstate slavery once the fighting came to an end. As the war wound down, many wanted to defer this issue for at least five years. But the proclamation prevented this evasion, forcing the question to the center of public attention.

Congress' first moment of truth came before the 1864 elections, when the 13th Amendment, which would authoritatively free the slaves, came to the floor. But in April 1864, the House rejected the measure. By voting no, Democrats sympathetic to the South deprived the initiative of the requisite two-thirds majority.

This constrained exercise of constitutional and statutory discretion will force both parties down Lincoln's path, requiring tough decisions they might otherwise evade.

The Democrats' decision made the emancipation amendment a central issue in the November elections — with their presidential candidate, Gen. George McClellan, supporting his party's congressional position throughout the fall campaign. The Democrats changed their tune only after their decisive defeat at the polls by Lincoln's Republicans. When the 13th Amendment returned for consideration during the lame duck session of Congress, enough Democrats changed their votes to give the initiative the two-thirds majority required to send it onward to the states.

The subsequent enactment of the amendment, however, did not conclude the debate that Lincoln had begun. In his proclamation, he promised to “recommend” that all “loyal” citizens “be compensated for all losses… including the loss of slaves.” This recommendation provoked a further round of argument that only ended in 1868 when the 14th Amendment rejected Lincoln's proposal, expressly denying all compensation to slaveholders for their newly emancipated freedmen.

Particulars in Obama's proclamation may well be changed by Americans over time. But like Lincoln's, its provisional and limited character will have a democracy-forcing effect — spurring officials and citizens to more actively engage in a constitutional dialogue.

Rather than refusing to follow the Constitution and “take care that the laws be faithfully executed,” the president emphasizes that he will continue deportations, using all the budgetary resources Congress has provided. But those appropriations cover the annual removal of only 400,000 of the 11.3 million immigrants in the country illegally. Given this fact, Obama's initiative has a constitutionally legitimate purpose: to prevent Homeland Security from wasting its scarce resources on breaking up innocent families when it could be targeting immigrants who deserve expeditious removal.

This constrained exercise of constitutional and statutory discretion will force both political parties down Lincoln's path, requiring tough decisions they might otherwise evade: Will the Republican candidates for president and Congress, like the Democrats in 1864, run their next campaign on a platform repudiating Obama's proclamation? If so, will the Democrats of 2016 defend it? If so, how will voters respond?

The democracy-forcing aspect of Obama's initiative distinguishes it from other recent exercises in executive unilateralism. The president's decision to begin an open-ended war against Islamic State, for example, represents the imperial presidency at its worst. It is neither conditional nor provisional.

To the contrary, Obama is ignoring the War Power Act's explicit requirement that presidents gain congressional assent to their initiation of hostilities within 60 days. Rather than provoking debate, his assertion of power allows Congress to defer a considered decision on the war to the indefinite future. Serious constitutionalists should oppose such unilateralist assertions as a breach of fundamental principle.

But they should not confuse the issue by denouncing the president as imperial when he is engaging in democracy-enhancing actions fully consistent with his obligation to “take care that the laws be faithfully executed.”

An earlier version of this post appeared in the Los Angeles Times

Sunday, November 23, 2014

Prosecutorial Discretion Through the Looking Glass

Guest Blogger

David Alan Sklansky

For the Symposium on Administrative Reform of Immigration Law

            For someone like me—a former prosecutor who now teaches and writes about criminal procedure—there is a Through the Looking Glass quality to much of the furor over President Obama’s new immigration enforcement policies.  For several decades concerns have been raised that American prosecutors exercise lawless authority, in large part because of their nearly unbridled discretion over the filing of criminal charges.  Prosecutors have resisted, fiercely and successfully, virtually every effort to limit the range of their discretion or to require them to explain, to defend, or to justify their charging decisions.  Their resistance has been successful in part because the courts have treated enforcement decisions not just as unamenable to judicial review but as a matter firmly committed under our scheme of government to the Executive Branch.  It is this extreme deference by the courts to prosecutorial discretion—deference that strikes many scholars of criminal procedure as excessive—that has served as the primary template for broad judicial deference to other forms of executive enforcement discretion, including decisions about deportation.

            From that standpoint, there are two things about the immigration enforcement policies that are profoundly unremarkable.  The first is that the Executive Branch is prioritizing which undocumented immigrants it will seek to deport.  It has to do that, since there are about 11 million undocumented immigrants in the country and Congress has provided funding that will allow somewhere around only 400,000 removal actions each year.  The second unremarkable thing is the particular enforcement priorities the Administration has chosen, none of which seem to have drawn any significant criticism.  Those priorities do not include, needless to say, immigrants without criminal records who are the parents of U.S. citizens or lawful permanent residents and who have lived in this country continuously since at least 2009.

            What has drawn criticism, of course, is the announcement of a policy not to deport most people in that group, at least not for the time being, coupled with a decision to give them work permits.  I don’t feel particularly qualified to opine about the legality of the work permits, except to note—as has the Administration—that there is a longstanding practice of giving work permits to immigrants granted “deferred action,” a practice to which Congress and the courts seem, at a minimum, to have acquiesced.  But to someone who thinks more about prosecutors than about immigration agents, it’s weird to see to see the President criticized as “lawless” for announcing a formal policy rather than continuing to forego deportation on a entirely ad hoc, decentralized, case-by-case basis, as everyone seems to agree he could have done.  It’s in large part the ad hoc, decentralized nature of prosecutorial discretion that has seemed to many people, for quite a long time, to allow prosecutorial power to be exercised so arbitrarily.

            What makes the talk of lawlessness in connection with the new immigration policies especially bizarre is that (a) the President took the unusual step of releasing an assessment of those policies by the Office of Legal Counsel, (b) OLC’s assessment took seriously not just the judicially enforceable limits on executive discretion, which are minimal, but the nonjusticiable implications of the President’s constitutional obligation to “take Care that the Laws be faithfully executed,” and (c) OLC wound up interpreting that language to impose significant restrictions on enforcement discretion—so significant that they ruled out some of what the President had wanted to do, and what it seems to me he could very plausibly have claimed authority to do.  Charging guidelines in criminal procedure are rarely if ever announced and defended in so public a manner, with such significant self-imposed limits.  Maybe they shouldn’t be.  But when compared with enforcement discretion in criminal procedure, the new immigration policies hardly look lawless.

            It’s entirely sensible to think not just about the substance of the new immigration enforcement policies but also about the precedent set by the way in which the President has put them into place.  The President’s critics are right about that.  They’re wrong, though, to suggest that the precedent created here will allow future Administrations to decline to enforce any laws they do not like.  The President has asserted the authority only to exercise his immigration enforcement discretion—a kind and an amount of discretion that Congress has left him no choice but to exercise in one way or another—through nationwide policies, publicly announced and publicly defended, rather than through ad hoc decisions made around the country behind closed doors.  Moreover, OLC’s memorandum concludes that the new deferred prosecution guidelines are permissible only because (a) they rely on factors peculiarly within the expertise of those charged with enforcing the immigration laws, (b) they are consonant with the policies and commitments established by Congress, (c) they do not abdicate or attempt to rewrite the President’s statutory responsibilities, and (d) they leave open the possibility of individualized, case-by-case decisions, if particular immigrants within the general class protected by the new policy nonetheless merit deportation.

            Arguably those principles would allow the step ruled out by OLC—deferred action for parents of DACA beneficiaries.  Regardless, though, the precedent they create for future Presidents is circumscribed.

David Alan Sklansky is Professor of Law at Stanford Law School and can be reached at


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