Margulies, Peter

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Roger Williams UniversityDOCS@RWULaw Faculty Scholarship Law Faculty Scholarship11-23-2014President Obama’s Immigration Plan: Rewritingthe LawPeter MarguliesRoger Williams University School of LawFollow this and additional works at: https://docs.rwu.edu/law_fac_fsPart of the Immigration Law Commons, and the President/Executive Department CommonsThis Article is brought to you for free and open access by the Law Faculty Scholarship at DOCS@RWU. It has been accepted for inclusion in LawFaculty Scholarship by an authorized administrator of DOCS@RWU. For more information, please contact mwu@rwu.edu.Recommended CitationPeter Margulies, President Obama’s Immigration Plan: Rewriting the Law, Lawfare (Nov. 23, 2014, 4:15 PM),https://www.lawfareblog.com/president-obamas-immigration-plan-rewriting-lawEXECUTIVE POWERPresident Obama’s Immigration Plan: Rewriting the LawBy Peter Margulies  Sunday, November 23, 2014, 4:15 PMAs a supporter of comprehensive immigration reform and director of Roger Williams Law School’s Immigration Clinic, I know the high stakes in thecurrent debate about President Obama’s executive action. I also know the higher stakes, previously acknowledged by the President, in adherence toour constitutional order; see my recent paper supporting the President’s Deferred Action for Childhood Arrivals (DACA) program. The President’saction and OLC’s unconvincing legal defense injure our constitutional framework. They also distract from the dif½cult, frustrating, but necessarypolitical work entailed in achieving lasting reform.As with any separation of powers issue, we start with Justice Jackson’s division of  presidential actions into three categories, based on the degree ofcollaboration between the President and Congress. The President receives greatest deference for acts consistent with Congress’s will, somedeference for acts that occur when Congress is silent, and little or no deference for acts that clash with legislative intent.The executive action announced on November 20 belongs in Jackson’s third category. Congress has carefully crafted an immigration framework thatdeters foreign nationals who enter the US illegally from using post-entry US citizen children to gain lawful status. In contrast, the central feature ofthe President’s unilateral action is its provision of work authorization and a reprieve from removal to this group. That policy may be a sensiblemeans to address the situation of the estimated 11 million undocumented people in the US. But the unilateral grant of these immigration bene½tsde½es Congress’s will.Here’s the statutory framework that OLC fails to address convincingly. The Immigration and Nationality Act (INA) requires US citizens to be 21before sponsoring parents. That provision is included in the INA precisely to discourage what foes of immigration reform crudely call “anchorbabies”---kids born here (and therefore US citizens) who could legalize undocumented parents. The “anchor baby” trope is a canard, since the INAmakes this strategy all but impossible. Undocumented individuals who entered without inspection (a category that includes most undocumentedpeople from Mexico) would have to evade immigration authorities until their child turns 21; they would also have to return to their home countryfor 10 years, because the INA bars legalization for 10 years for folks who have been unlawfully present in the US for a year or more. That statutorygauntlet sends a clear signal to foreign nationals: Entering the US without inspection and having kids is not a ticket to lawful residence or any of thebene½ts that lawful residence provides, such as work authorization.The OLC memo misses this clear legislative signal. At its heart, it’s not an interpretation of the INA, as Marty Lederman contends, but an end-runaround statutory limits. Effective legal guidance would have acknowledged Congress’s painstaking efforts to deter undocumented folks fromleveraging post-entry US citizen children. Instead, OLC breezily justi½es the award of precious bene½ts like work authorization by toutingundocumented parents’ “prospective entitlement to lawful immigration status.” Given congressional restrictions on this group, that’s  like sayingChicago Cubs fans have a “prospective entitlement” to baseball’s world championship, even though the Cubs last won a World Series in 1908. Thismischaracterization of legislative intent transforms the President’s announcement from an exercise in statutory interpretation to a clear example ofpresidential overreaching.Justice Jackson’s second category of presidential action based on legislative silence does not salvage the legality of the President’s decree. The OLCmemo asserts that the presidential decree’s sweeping program of deferred action resembles the longtime practice of presidential claims settlementacknowledged by the Supreme Court in Dames & Moore v. Regan (upholding the settlement of claims against Iran that paved the way for release ofIran’s US diplomatic hostages in 1981). The Court was right in Dames & Moore that presidential claims settlement, which dates to the presidency ofJohn Adams, had been acquiesced in by Congress. However, the same cannot be said for the sweeping deferred action announced by the President.Past deferred action programs, in contrast with President Obama’s announcement, were ancillary to legislation. For example, Bush 41’s "FamilyFairness" program bene½ted relatives of people legalized under Congress’s 1986 immigration reform. President Bush’s program went beyond the1986 legislation, as Mark Noferi notes in a valuable piece that supports President Obama.  However, as Noferi recounts, Congress subsequentlyrati½ed President Bush’s initiative. That seems unlikely to occur this time around. Deferred action has also assisted individuals who applied for alawful status under other legislation, including the Violence Against Women Act.  None of the previous deferred action programs aided individualsthat Congress had expressly prevented from obtaining immigration bene½ts.The legal problems with the presidential decree are matched by its political ¾aws. The decree undermines the cause of real reform because it letsCongress off the hook. Congress’s failure to enact reform is a national disgrace. The task for committed advocates for reform is creating a politicallandscape that will make reform a reality. That endeavor will include work in Congress, the executive branch, and state legislatures wheregerrymandering has impeded congressional momentum for reform efforts. House Republicans, who have blocked reform, now can rail againstpresidential overreach instead of facing the consequences of their obstinacy.  Impeachment would be an uncalled-for overreaction, as Peter Schuckexplains here. Nevertheless, providing immigration reform opponents with additional talking points is an unintended consequence of PresidentObama’s decision that will make genuine, lasting reform far more dif½cult to achieve.Topics: Executive PowerPeter Margulies is a professor at Roger Williams University School of Law, where he teaches Immigration Law, National SecurityLaw and Professional Responsibility. He is the author of Law’s Detour: Justice Displaced in the Bush Administration (New York:NYU Press, 2010).

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President Obama’s Immigration Plan: Rewriting the Law

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