Charles Krauthammer has a column today taking President Obama to task for his recent decision to “lift the shadow of deportation” from otherwise law-abiding undocumented aliens who came to the U.S. as children and allow them to “request temporary relief from deportations and apply for work authorization.” (For DHS’s page on the program, see here.) He argues that it’s impermissible to exercise discretion categorically: rather, he says it requires review on a “case-by-case basis on considerations of extreme and extenuating circumstances.” I’m a big fan of the good doctor, but I’m not so sure he’s right about whether the exercise of discretion has to be individualized, at least not as a general matter. I think it requires a closer look at the specific statutes at issue.
It’s a background principle of administrative law that, “[a]bsent statutory language to the contrary, agencies are free to decide whether to implement a grant of discretion by means of rules, which provide prospective standards of behavior, or by means of case-by-case decisionmaking (or adjudication).” Agency Rules as Constraints on the Exercise of an Agency’s Statutory Discretion, 7 Op. OLC 39, 44 (1983) (AAG Ted Olson); cf. NAACP v. Fed. Power Comm’n, 425 U.S. 662, 668 (1976) (“As a general proposition it is clear that the Commission has the discretion to decide whether to approach these problems through the process of rulemaking, individual adjudication, or a combination of the two procedures.”). So the question then becomes whether the specific provisions of the immigration laws allow the Secretary of Homeland Security to exercise her discretion by rule in this manner.
I’d love to take a more careful look at the immigration laws and determine for myself whether I think they authorize the President’s action, but (1) I have actual paying clients to tend to, and (2) it’s well known that prolonged exposure to the hyper-reticulated Immigration and Nationality Act can actually cause your brain to melt. Here’s what I do know:
There are at least a couple ways in which the Executive Branch has afforded groups of aliens blanket relief from deportation. One is Temporary Protected Status, which allows the Secretary of Homeland Security to “designate a foreign country for TPS due to conditions in the country that temporarily prevent the country’s nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately.” That said, I’m not sure TPS serves as that good of a precedent for the recently announced program, because TPS is conducted under express congressional authorization in the form of 8 U.S.C. § 1254a. There isn’t comparable express authorization for the recently announced program; indeed, the Administration sought such authorization and Congress demurred.
A better precedent for the Executive Branch to act unilaterally is Deferred Enforced Departure. As explained on the CIS website), DED is a “temporary, discretionary, administrative stay of removal granted to aliens from designated countries.”
Unlike TPS, DED emanates from the President’s constitutional powers to conduct foreign relations and has no statutory basis. (Because DED is not a statutory provision under the Immigration and Nationality Act it is not considered an immigration status.) The President designates DED for nationals of a particular country through either an Executive Order or a Presidential Memorandum.
As some proponents of the President’s action are quick to note, President Bush issued a Memorandum to Secretary Chertoff on September 12, 2007, granting deferred enforced departure to certain Liberians for a period of 18 months. See 43 Weekly Comp. Pres. Documents 1203 (Sept. 12, 2007). (While at OLC, I reviewed that Memorandum.)
But it’s not clear that Deferred Enforced Departure is a close fit as a precedent either, because it traditionally has been used only temporarily to prevent aliens from having to return to areas suffering from disturbances. It has been employed as an exercise of the President’s power to conduct the foreign relations of the United States, and it’s not self-evident that same power would permit the President to indefinitely suspend deportation for a much larger group of aliens who don’t confront the same circumstances in their countries of citizenship. That starts to sound more like Congress’s power “[t]o establish an uniform Rule of Naturalization,” U.S. Const. art I, § 8 cl.4. Indeed, this purportedly leaked DHS draft memo discussing the issue way back in February 2010 recognizes that this sort of program “would represent use of deferred action on a scale far beyond its limited class-based uses in the past.” (Careful readers will note the facial reason to doubt the memo’s authenticity—it purports to be a DHS document, and yet it’s time-stamped 5pm on a Friday.*)
This is all a long-winded way of saying that this would be a great subject for an OLC opinion. I have to imagine OLC at least gave the White House Counsel’s Office informal advice before the President acted; given that DHS apparently was thinking about this subject more than two years ago, it may be that OLC had enough notice to prepare a written opinion in advance. But in any event, I hope that the opinion will be published soon. (And while you’re at it, OLC, how about publishing a redacted version of the reported OLC opinion approving the targeting of Anwar al-Awlaki? For more on the subject, see Jack Goldsmith’s thoughts here.)
Lastly, Dr. Krauthammer begins his article saying that the President in 2011 publicly acknowledged that he lacked authority for such a program. The President’s defenders say that the quote, taken in context, acknowledges the President’s authority to exercise discretion in deciding who is deported. If you’re willing to devote two minutes and 33 seconds to watching this clip (and don’t mind having the history folder on your browser say you visited a blog entitled “Kids Prefer Cheese”), you can make up your own mind.
*Apologies for the lame effort at humor.