That’s Walter Dellinger’s determination:
The idea that the immigration plan just announced by President Obama is a lawless power grab is absurd. As the Justice Department legal analysis that was just released amply demonstrates, much of the advance criticism of the president’s action has been uninformed and unwarranted. The opinion is well-reasoned and at times even conservative. The president is not acting unilaterally, but pursuant to his statutory authority. Wide discretion over deportation priorities has long been conferred on the executive branch by Congress, and it is being exercised in this case consistent with policies such as family unification that have been endorsed by Congress.
The piece is by far the best I’ve read on the subject, and calms my fears a lot. This is the best response to Ross’s point that if the president can do this for 4 million, why not every undocumented immigrant:
The lawyers here were cautious. They gave approval for deferred actions for parents of citizens and lawful permanent residents, finding that Congress had demonstrated support for permitting people who are lawfully in America to be united with their parents, spouses, and children. They did not, however, believe that they could approve a similar program for parents of those who are in the United States under the deferred action for childhood arrivals, or DACA, program. Because the Dreamers remain in the country based on discretion, not on the basis of a legal entitlement, OLC reasoned that without a family member with lawful status in the United States, there was not the same grounding in congressional policy to justify classwide relief.
But, again, the ability of the Obama administration to make its best case seems to be in doubt. They put out a long legal paper – but back it up with no aggressive messaging in the broader public square. That way, they win the argument but somehow lose the debate. Which is the story on the ACA as well. Here’s Dellinger’s strongest point, it seems to me, and one critical to understanding the debate about executive discretion:
There are 11.3 million people in the United States who, for one reason or another, are deportable. The largest number that can be deported in any year under the resources provided by Congress is somewhere around 400,000. Congress has recognized this and in 6 U.S.C. 202 (5) it has directed the secretary of homeland security to establish “national immigration enforcement policies and priorities.” In the action announced tonight, the secretary has done just that, and the president has approved.
Drum, for his part, is somewhat surprised to find that “both liberal and conservative legal scholars—as opposed to TV talking heads and other professional rabble-rousers—agree that Obama has the authority to reshape immigration enforcement in nearly any way he wants to”:
It’s an open question whether Obama’s actions are politically wise. It might force Republicans into an uncomfortable corner as they compete loudly to denounce Obama’s actions, further damaging their chances of appealing to Hispanics in future elections. Alternatively, it might poison any possibility of working constructively with congressional Republicans over the next couple of years, which might further degrade Democratic approval ratings. There’s also, I think, a legitimate question about whether liberals should be cheering an expansion of presidential power, whether it’s legal or not.
That said, Obama’s actions really do appear to be not just legal, but fairly uncontroversially so among people who know both the law and past precedent.
Marty Lederman dispels “some of the more commonly heard myths about the DHS enforcement priorities and ‘deferred action’ policies that the President just announced.” One myth he busts:
It does not “cut out Congress”—indeed, it relies upon statutory authority. Nor does it contradict what Congress has prescribed. Neither the President nor the Secretary nor OLC has said anything to suggest that Congress could not, by statute, require a different enforcement scheme—to the contrary, OLC specifically acknowledges (pp. 4, 6) that Congress could legislate limits on enforcement discretion that the agency would be obliged to follow. Moreover, and of great significance, OLC specifically concludes that, because enforcement priority decisions must be “consonant with, rather than contrary to,” Congress’s policy decisions as reflected in the governing statutes (pp. 5, 20), it would not be permissible for DHS to afford deferred action status to one category of aliens that the agency had proposed to cover (parents of children who have received deferred action status under the so-called “DACA” program): Offering deferred action status to such aliens, OLC opined, would be unlawful because it would “deviate in important respects from the immigration system Congress has enacted and the policies that system embodies” (p. 32).
Ilya Somin agrees that Obama is in the clear:
I am no fan of the Obama administration’s approach to constitutional interpretation. In too many instances, the president really has acted illegally and undermined the rule of law – most notably by starting wars without congressional authorization. But today’s decision isn’t one of them.