Unlawfully Present Aliens, Higher Education, In-State Tuition, and Financial Aid: Legal Analysis

[Excerpt] State measures that would deny or provide access to public institutions of higher education, instate tuition, and financial aid to unlawfully present aliens have been challenged on various grounds. While these grounds can vary depending upon the specific statute or practice in question, the grounds most commonly asserted appear to be violations of the Equal Protection and Supremacy Clauses of the U.S. Constitution. Thus, these provisions are the focus of discussion in this report, and the following paragraphs provide an overview of the basic principles implicated in discussions of equal protection and preemption

The Obama Administration’s November 2014 Immigration Initiatives: Questions and Answers

[Excerpt] On November 20, 2014, President Obama delivered a televised address wherein he broadly described the steps that his administration is taking to “fix” what he has repeatedly described as a “broken immigration system.” Following the President’s address, executive agencies made available intra-agency memoranda and fact sheets detailing specific actions that have already been taken, or will be taken in the future. These actions generally involve either border security, the current unlawfully present population, or future legal immigration. The announced executive actions—particularly the granting of deferred action and employment authorization to some unlawfully present aliens, discussed below (see “Unlawfully Present Population”)—have revived debate about the executive’s discretionary authority over immigration like that which followed the Administration’s June 2012 announcement of the Deferred Action for Childhood Arrivals (DACA) initiative. DACA has permitted some unlawfully present aliens who were brought to the United States as children and raised here to obtain temporary relief from removal and, in many cases, employment authorization. Some have argued that DACA constitutes an abdication of the executive’s duty to enforce the laws and runs afoul of specific requirements found in the Immigration and Nationality Act (INA), among other things. Others, however, have maintained that the DACA initiative is a lawful exercise of the discretionary authority conferred on the executive by the Constitution and federal statute. Similar arguments will likely be made as to the November 2014 actions, which affect a significantly larger number of aliens than DACA. This report provides the answers to key legal questions related to the various immigration-related actions announced by the Obama Administration on November 20, 2014. Because the various documents outlining these actions have been available for a limited period of time, and additional information is expected to be released in the future, these answers are necessarily preliminary. It is anticipated that the report will be updated to reflect further developments

Insourcing Functions Performed by Federal Contractors: An Overview of the Legal Issues

[Excerpt] While agencies are prohibited by federal law and policy from contracting out functions that are “inherently governmental,” other functions could potentially be contracted out. There has long been debate over both general government policies promoting the use of the private sector to perform “commercial functions” and whether specific functions should be performed by government personnel or contractors. However, since 2008, the insourcing initiatives of recent Congresses and the Obama Administration have caused particular controversy. Several lawsuits have been filed challenging agencies’ determinations to insource particular functions, and broader questions have been raised as to whether agencies’ implementation of insourcing runs afoul of civil service, ethics, or small business laws. This report provides a brief overview of key legal issues related to recent insourcing initiatives. It will be updated as developments occur

Prosecutorial Discretion in Immigration Enforcement: Legal Issues

This report begins by discussing the sources of federal power to regulate immigration and, particularly, the allocation of power between Congress and the President in this area. It next addresses the constitutional and other foundations for the doctrine of prosecutorial discretion, as well as the potential ways in which prosecutorial discretion may be exercised in the immigration context. It concludes by addressing potential constitutional, statutory, and administrative constraints upon the exercise of prosecutorial discretion. The report does not address other aspects of discretion in immigration law, such as the discretion exercised by immigration officers in granting benefits (e.g., asylum), or by immigration judges in non-enforcement contexts (e.g., cancellation of removal)

Insourcing Functions Performed by Federal Contractors: Legal Issues

[Excerpt] While agencies are prohibited by federal law and policy from contracting out functions that are “inherently governmental,” other functions could potentially be contracted out. There has long been debate over both general government policies promoting the use of the private sector to perform “commercial functions,” and whether specific functions should be performed by government personnel or contractors. However, since 2008, the insourcing initiatives of recent Congresses and the Obama Administration have generated particular controversy. Several lawsuits have been filed challenging agencies’ determinations to insource particular functions, and broader questions have been raised as to whether agencies’ implementation of insourcing runs afoul of civil service, ethics, or small business laws. This report provides a brief overview of key legal issues related to recent insourcing initiatives. It will be updated as developments occur

Location-Based Preferences in Federal and Federally Funded Contracting: An Overview of the Law

[Excerpt] The recession that began in December 2007 has prompted increased interest among some Members of Congress and their constituents in legal authorities that could require or allow federal agencies to prefer contractors in one state or locality over those in other states or localities. Federal spending on procurement contracts has remained high, reaching $523.9 billion in FY2009, at a time when many other businesses have scaled back their purchases of goods and services. However, this spending has historically been localized in three to five states, which receive nearly half of all federal procurement dollars, prompting concerns about whether other states receive their “fair share.” Such concerns may be overstated, given that many contracts must be performed in or near Washington, DC, and shifting the place of performance of existing contracts from one state to another would generally not decrease overall unemployment. Nonetheless, geographic distribution of federal spending and federal funding is often a concern during economic downturns. This report discusses constitutional and other legal issues related to the creation and implementation of location-based preferences in federal contracting, as well as summarizes key authorities requiring or allowing federal agencies to “favor” contractors located in specific places. The report does not address federal preferences for domestic products or provisions of federal law that could, depending upon their implementation, effectively prefer local contractors, such as project labor agreements

Unlawfully Present Aliens, Driver’s Licenses, and Other State-Issued ID: Select Legal Issues

[Excerpt] This report provides an overview of key legal issues raised by state laws regarding the denial or issuance of driver’s licenses and other forms of ID to unlawfully present aliens. It also addresses the legal issues raised by local governments issuing ID cards to unlawfully present aliens, as well as by state and local approaches to recognizing foreign-issued ID documents

Authority of State and Local Police to Enforce Federal Immigration Law

[Excerpt] This report discusses the authority of state and local law enforcement to assist in the enforcement of federal immigration law through the investigation and arrest of persons believed to have violated such laws. It describes current provisions in federal law that permit state and local police to enforce immigration law directly, analyzes major cases concerning the ability of states and localities to assist in immigration enforcement, and briefly examines opinions on the issue by the Office of Legal Counsel (OLC) within the Department of Justice. This report does not discuss legal issues raised by states and localities enacting their own immigration-related laws, including measures intended to supplement federal law through the imposition of additional criminal or civil penalties

Inherently Governmental Functions and Other Work Reserved for Performance by Federal Government Employees: The Obama Administration’s Proposed Policy Letter

[Excerpt] On March 31, 2010, the Office of Federal Procurement Policy (OFPP) in the Office of Management and Budget (OMB) issued a proposed policy letter on inherently governmental functions and other “work reserved for performance by federal government employees.” While not final, the policy letter represents the Obama Administration’s proposed guidance for agencies determining (1) whether particular functions are inherently governmental and (2) when functions closely associated with the performance of inherently governmental functions and critical functions should be performed by government personnel. The proposed policy letter was, in part, issued under the authority of the Duncan Hunter National Defense Authorization Act for FY2009 (NDAA\u2709) and President Obama’s memorandum of March 4, 2009, on government contracting. Section 321 of NDAA\u2709 tasked OMB with (1) reviewing existing definitions of “inherently governmental function” to determine whether such definitions are “sufficiently focused” to ensure that only government personnel perform inherently governmental functions or “other critical functions necessary for the mission of a Federal department or agency;” (2) developing a “single consistent definition” of “inherently governmental function” that would address any deficiencies in the existing definitions, reasonably apply to all agencies, and ensure that agency personnel can identify positions that perform inherently governmental functions; (3) developing criteria for identifying critical functions” that should be performed by government personnel; and (4) developing criteria for identifying positions that government personnel should perform in order to ensure that agencies develop and maintain “sufficient organic expertise and technical capacity” to perform their missions and oversee contractors’ work. President Obama’s March 4, 2009, memorandum similarly charged OMB with clarifying when outsourcing is “appropriate.

Contract Types: Legal Overview

This report provides an overview of the various contract types (e.g., fixed-price, cost-reimbursement) used in federal procurement and the legal requirements and issues pertaining to each. The types of contracts used by federal agencies have long been of interest to Congress and the executive branch, as they have sought to ensure that the most appropriate type of contract is used to acquire particular supplies or services