Obama's amnesty executive order: On the edge of legality

Law professor Josh Blackman has done a detailed analysis of the legal advice given to President Obama regarding his executive order effectively granting amnesty to millions of illegal immigrants. The White House's Office of Legal Counsel (OLC) drew some very fine distinctions that have escaped the attention of the popular press.

The gist of it is this: No, a president can't simply decide not to enforce a law on the books. Prosecutorial discretion has to be exercised on a case-by-case basis. The administration may adopt guidelines that prosecutors should consider when deciding whether or not to prosecute, but a policy that precludes automatic application to an entire class. Some relevant quotes from the OLC memo:

We advised that it was critical that, like past policies that made deferred action available to certain classes of aliens, the DACA program require immigration officials to evaluate each application for deferred action on a case-by-case basis, rather than granting deferred action automatically to all applicants who satisfied the threshold eligibility criteria....

Finally, lower courts, following Chaney, have indicated that non-enforcement decisions are most comfortably characterized as judicially unreviewable exercises of enforcement discretion when they are made on a case-by-case basis.... Individual enforcement decisions made on the basis of case-specific factors are also unlikely to constitute "general polic[ies] that [are] so extreme as to amount to an abdication of [the agency's] statutory responsibilities." Id. at 677 (quoting Chaney, 477 U.S. at 833 n.4). That does not mean that all "general policies" respecting non-enforcement are categorically forbidden: Some "general policies" may, for example, merely provide a framework for making individualized, discretionary assessments about whether to initiate enforcement actions in particular cases. Cf. Reno v. Flores, 507 U.S. 292, 313 (1993) (explaining that an agency's use of "reasonable presumptions and generic rules" is not incompatible with a requirement to make individualized determinations). But a general policy of non-enforcement that forecloses the exercise of case-by-case discretion poses "special risks" that the agency has exceeded the bounds of its enforcement discretion. Crowley Caribbean Transp., 37 F.3d at 677....

Further, although the proposed policy is not a "single-shot non-enforcement decision," neither does it amount to an abdication of DHS's statutory responsibilities, or constitute a legislative rule overriding the commands of the substantive statute. Crowley Caribbean Transp., 37 F.3d at 676-77. The proposed policy provides a general framework for exercising enforcement discretion in individual cases, rather than establishing an absolute, inflexible policy of not enforcing the immigration laws in certain categories of cases.

In another entry, Blackman imagines President Rick Perry issuing an executive order to "to defer all prosecutions for any tax payer that pays at least 17% of their flat tax, even if the old brackets suggest they owe more" among other discretionary steps.

MORE: This week's "cold open" on Saturday Night Live featured a new Schoolhouse Rock video: Who needs a bill when you can issue an executive order?

Last last week, NRO's Charles C. W. Cooke traced the transformation of Barack Obama from the 2008 senator who wanted to rein in the executive branch to the 2014 president who has gone well beyond the actions which he had condemned in his predecessor's administration:

Noting in 2008 that he "taught constitutional law for ten years," and in consequence took "the Constitution very seriously," Obama determined that "the biggest problems that we're facing right now have to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all." "That," the candidate assured his audience, is "what I intend to reverse when I'm president of the United States of America."...

And yet, just one short year after he had told students that he was hamstrung by the rules, the president did precisely what he said he could not, refusing to "enforce and implement" those "very clear" laws and abdicating disgracefully his "appropriate role as president." Obama called this maneuver "DACA," although one imagines that James Madison would have come up with a somewhat less polite term.

Evidently, the new approach suited the president. Soon thereafter, he began to make extra-legislative changes to Obamacare, without offering any earnest legal justifications whatsoever; he responded to Congress's refusal to raise the minimum wage by rewriting the Service Contract Act of 1965; and, as a matter of routine, he took to threatening, cajoling, and mocking Congress, and to informing the country's lawmakers that by declining to consent to his will they were refusing to do "their jobs." In Obama's post-2011 world, it seems, legislators are not free agents but parliamentary subordinates possessed of two choices: either they do what he wants, or they watch him do what he wants. Refusing assent seems to be regarded as an entirely illegitimate option. This, it should be perfectly obvious, is the attitude not of the statesman, but of the mugger. "Give me your wallet," the ruffian says, "or I will take it by force." That progressives who once championed the man for his calm and his virtue have taken to twisting themselves into knots in his defense should tell us all we need to know about their broader sincerity -- and his.

At The Daily Signal, Hans von Spakovsky explains how Obama's amnesty differs from Reagan and Bush 41 executive orders related to immigration:

In 1986, Congress passed the Immigration and Reform Control Act (IRCA), which provided a general amnesty to almost three million illegal immigrants. According to the Associated Press, Reagan acted unilaterally when his Immigration and Naturalization Service commissioner "announced that minor children of parents granted amnesty by [IRCA] would get protection from deportation." In fact, in 1987 former Attorney General Ed Meese issued a memorandum allowing the INS to defer deportation where "compelling or humanitarian factors existed" for children of illegal immigrants who had been granted amnesty and, in essence, given green cards and put on a path towards being "naturalized" as citizens. In announcing this policy, Reagan was not defying Congress, but rather carrying out the general intent of Congress which had just passed a blanket amnesty for millions of illegal immigrants....

The Bush administration relaxed these technical requirements under a "Family Fairness" policy to defer deportation of the spouses and children of illegal immigrants who were allowed to stay in this country and seek naturalization through the IRCA amnesty. Shortly thereafter, Bush worked with Congress to pass the Immigration Act of 1990, which made these protections permanent. Significantly, the Bush policy and the 1990 Act affected only a small number of immigrants-about 180,000 people-in comparison to Obama's past (his 2012 implementation of the Deferred Action for Childhood Arrival program) and anticipated unilateral actions that will affect millions of immigrants.

Congressman Raul Labrador said on MSNBC that House Republicans and Democrats were close to a bipartisan deal on immigration, but the White House put a stick in the spokes:

"[The House bill] was something that would be acceptable to the House, would include all of the areas of immigration we needed to do. It was going to include border security, interior security, and the more the White House heard about what the House was doing, the more they interfered. His chief of staff, the president's chief of staff at the time, decided to call House Democrats and tell them that they needed to stop negotiating with House Republicans because they wanted the only vehicle for immigration reform, they want it to be the Senate bill. The president is in essence telling the American people it is only the Senate bill that is the only vehicle for immigration reform and that nothing else is acceptable."