Saturday, June 16, 2012

Is Obama's New Immigration Policy Legal?

Secretary of Homeland Security, Janet Napolitano w/ President Obama
By now most of you have heard about President Obama's latest announcement that his administration (via the Department of Homeland Security) is going to grant temporary stays of deportation and work permits for illegal immigrants under the age of 30 who came into the country as children, have no criminal records, and who have either served in the military or attended college here in the U.S.  In other words, the Obama administration is effectively going to enforce the essence of the Dream Act which, as you might recall, passed in the House but was stalled in the Senate back in 2010 even though it received 55 votes in favor out of 100 [Editor's Note: in the olden days, laws used to pass by majority vote; those days appear to be behind us].  But wait -- I know what you're thinking.  If the Dream Act was stalled in the Senate then it never became law, right?  And if it never became law, then how in the hell is the Obama Administration doing what it's doing?  To ask it another way, is this Constitutional?  We already know that the Obama Administration thinks so, but Fox News certainly does not agree.  So who is right?  Let's figure it out after the jump.

I will warn you at the beginning - the following legal discussion will not be sexy.  But stick with me and we'll get through this thing together with as little headache as possible.  It's actually not that complicated, it just involves a few things that most people have never heard of.

Let's start with the beginning: the Constitution.  We've all heard about that document right?  Great.  So far so good.  For purposes of our discussion here, all you need to know is that the Constitution (Article I, Section 8 to be exact) gives Congress the ability to create laws about immigration.   Speaking of creating laws, that brings us to another important point in this discussion: the roll of the 3 branches of government.  In this case we really only care about 2: The Legislative Branch (Congress) and The Executive Branch (the President).

As stated a moment ago, it is Congress' roll as the legislative branch to "create" the law.  This is accomplished by Congress going through the legislative process: a bill is introduced on the floor, it goes through committees, there are rounds and rounds of debate, and after everybody is done yacking a vote is taken in both the House and the Senate.  If both the House and the Senate vote in favor of the bill, it is presented to the President who can either veto it or sign it into law.  In the case where a bill is signed into law, it is then written down on the books as United States Code ("U.S.C.").  Now, here's where things can get confusing so follow along closely.

Many people think that once a law is signed by the President and printed on the books as U.S.C. then that's the end of the story.  But there's actually one more step.  As mentioned above, we all know that the Legislative Branch (Congress) creates the laws.  So what does the Executive Branch do?  It carries out the laws that are created by Congress.  But how does it do that?  Logic dictates that it would start by reading the U.S.C. right?  If you guessed that then you are correct.  By law, the Executive Branch (which is the President and all of his/her agencies) has to follow the U.S.C. written by Congress.  But often times Congress is too busy to spell out in great detail how exactly the rubber should meet the road with respect to how each agency is affected by a particular law.  And even in the case where it isn't too busy, Congress has learned over the years that the Executive Branch agencies are usually more experienced and better equipped to deal with the miniscule details that come along with the burden of the day to day execution of the laws created by Congress.  Congress has solved this problem by affording a reasonable amount of discretion to the Executive Branch agencies which, in turn, allows the agencies to come up with their own detailed rules on carrying out the U.S.C.  These detailed rules are known as the Code of Federal Regulations ("C.F.R.").

Had you ever heard of C.F.R.'s before today?  If not, don't be ashamed because most folks haven't.  The C.F.R.'s are written by the Executive Branch agencies themselves and, as mentioned, they spell out in great detail how a particular agency will carry out the U.S.C. that Congress wrote.  I can see that your eyes are starting to glaze over so let me provide an example to give us some context.

Let's say that Congress passed a law banning people from going onto facebook (just play along, ok?).  The law simply says that "the entity known as facebook has been determined by Congress to be a bad thing and every U.S. citizen who logs onto facebook from this day forward shall be penalized by the Department of Justice."  The law provides no further details.  So how does the Department of Justice go about executing this law?  That's where the C.F.R.'s come in.  The Department of Justice, having been forced into this mess by Congress' new ambiguous law, must now create their own C.F.R. that defines what the act of "logging on" to facebook means, and, more importantly, what the penalty should be for those who do it.  Should it be a small fine?  A big fine?  Jail time?  A fine plus jail time?  Because Congress passed the buck on defining any of these things in its U.S.C., all of these things are left up to the Department of Justice's discretion.  The U.S.C. merely says that some kind of penalty must be handed out, but it leaves the details up to the Executive Branch on how to go about that.  To be sure, the Executive Branch cannot refuse to impose a penalty.  That would plainly contradict the U.S.C.  According to my fictitious U.S.C. here, the Executive Branch has to come up with some kind of penalty, but the severity of that penalty is left up to its discretion.  (For more on how this works, see Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984)).

So what does all of this mean for our case here?

First things first, we have to go to the U.S.C. on immigration to see if it spells out what is supposed to happen to illegal immigrants who are (i) under 30 (ii) have no criminal records and (iii) have gone to college and/or served in the military.  Unfortunately, the U.S.C. (8 U.S.C. chapter 12 to be exact) does not specifically say what should happen to immigrants who fit this description.  Instead, it says the following:

(d) Administrative stay
(1) If the Secretary of Homeland Security determines that an application for nonimmigrant status under subparagraph (T) or (U) of section 1101 (a)(15) of this title filed for an alien in the United States sets forth a prima facie case for approval, the Secretary may grant the alien an administrative stay of a final order of removal under section 1231 (c)(2) of this title until—
(A) the application for nonimmigrant status under such subparagraph (T) or (U) is approved; or
(B) there is a final administrative denial of the application for such nonimmigrant status after the exhaustion of administrative appeals.
(2) The denial of a request for an administrative stay of removal under this subsection shall not preclude the alien from applying for a stay of removal, deferred action, or a continuance or abeyance of removal proceedings under any other provision of the immigration laws of the United States.
(3) During any period in which the administrative stay of removal is in effect, the alien shall not be removed.
(4) Nothing in this subsection may be construed to limit the authority of the Secretary of Homeland Security or the Attorney General to grant a stay of removal or deportation in any case not described in this subsection. 
8 U.S.C. § 1227 (emphasis supplied).

In layman's terms, when Congress made its immigration laws, it specifically allowed the Department of Homeland Security (headed by Secretary Janet Napolitano) wide discretion in coming up with C.F.R.'s which grant temporary passes for final orders of deportation.  The same thing applies when we look at the Department of Homeland Security's discretion for granting temporary work permits to illegal immigrants.  Furthermore, it is important to note that President Obama announced that the Department of Homeland Security will provide the specific aliens at issue with "temporary relief from deportation proceedings and [the ability to] apply for work authorization."  The reason why he had to say "temporary" relief is because the section of the U.S.C. cited above states that Secretary Napolitano has the discretion to stay a deportation temporarily.  The U.S.C. does not allow the Secretary to grant a permanent stay or citizenship. To do so would be an abuse of the Secretary's discretion.

So did President Obama bypass Congress on the Dream Act?  Politically speaking, yes he did.  There can be no question about that.  Congress did not pass the Dream Act but the Executive Branch is carrying out the essence of that law anyway.  However, the bigger question is whether this action is legal.  As we can see from the U.S.C. vs. C.F.R. analysis above, much discretion is afforded to the Executive Branch on this issue.  Because of this discretion, the President (acting by way of the Department of Homeland Security) is actually allowed by law to take the action that he did.  If the U.S.C. spelled out in great detail that illegal immigrant students who overstay their visas must go back without exception or that the Secretary of Homeland Security has no discretion in granting temporary stays or work permits then that would be one thing.  But it doesn't say that.  To the contrary, the U.S.C. grants Secretary Napolitano wide discretion in this area.  Thus, the President's new policy announcement, love it or hate it, is actually legal.

1. In your own opinion (legal or otherwise), do you feel that the action of the President is legal here?
2. Should Congress remove any discretion from the Secretary of Homeland Security on the issue of immigration?
3. Will this likely spark a discussion on immigration reform?
4. How will this play out politically?

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