Sunday, November 23, 2014

On Immigration, Obama on Sound Legal Ground

      President Obama has powerful legal arguments on his side to defend his decision to protect approximately 4 million undocumented aliens from the threat of deportation. But Obama weakened his case in the court of public opinion by the politically motivated decision to defer formalizing this policy until after the midterm congressional elections.
      The 33-page legal memorandum by the Justice Department’s Office of Legal Counsel (OLC) provides a well-reasoned and well-documented conclusion that the president’s policy is “a permissible exercise of [the Department of Homeland Security’s] discretion to enforce the immigration laws.” As the memorandum explains, the policy specifies somewhat restrictive criteria for eligibility for the time-limited protection from deportation and limits the legal rights or benefits for immigrants covered by the policy: work permits, yes; health benefits, no; and no legalization or path to citizenship.
      The memorandum cites Supreme Court precedents, congressional enactments, and longstanding regulations as legal authority. The categorical protection for immigrants who have been in the United States for four years and have no criminal record makes sense given the inevitable need to focus law enforcement resources on a small fraction of the 11 million undocumented aliens in the country today. And the policy is seen as “consonant with” congressional policy and as furthering “an important humanitarian interest,” to wit, “family unity.”
      The OLC memo gains credibility by its second conclusion that the same protection from deportation — in legal parlance, “deferred action” — cannot be extended to the parents of immigrants who have been previously been granted that status. The memo finds “no precedent for using deferred action to respond to humanitarian concerns arising from previous exercise of deferred action.”
      The strong legal and policy arguments in support of the policy all but destroys the administration’s justification for delaying the move until after the midterm elections. All of the reasons for the policy were just as strong a year ago as they are now. Arguably, Obama needed to delay until time had effectively run out for the House of Representatives to act on the immigration reform bill already passed by the Senate.
      By September, however, the administration had no reason for further delay except to avoid political damage to Democratic candidates from attacks by anti-immigration Republicans. Ironically, many political observers think the administration’s calculation backfired by reducing Latino voters’ turnout for Democratic candidates without in any way lessening the anti-Obama sentiment among Republicans and independents.
      The political debate over the policy is quickly moving into the courts. Joe Arpaio, the anti-immigrant sheriff of Maricopa County, Ariz., immediately vowed to sue over the policy; two Tennessee legislators said they would introduce resolutions urging that the state contest the policy in court. House Speaker John Boehner, fresh from filing suit against the administration over the Affordable Care Act, promised that the House would take unspecified action to challenge the immigration policy.
      In a different era, legal observers could confidently predict that the courts would steer clear of what is clearly a political dispute. The regrettable reality these days, however, is that partisan politics have spilled over into the courts. Witness the rulings on same-sex marriage. With one exception, the few federal judges to reject marriage rights for same-sex couples have all been Republican appointees. And GOP-appointed judges have been behind the legal setbacks dealt so far to the Affordable Care Act.
      Beyond releasing the OLC memo, the administration is touting a letter defending the immigration policy signed by 10 constitutional scholars ranging from the Harvard liberal Laurence Tribe to the University of Chicago conservative Eric Posner. The signers acknowledge differences over immigration policy but join in concluding that the “executive actions” announced by Obama are “lawful.”
      The OLC memo answers some of the criticisms of Obama’s move heard before the president’s announcement and since. Executive discretion in granting “deferred action” is well established, the memo says, as long as the status can be withheld on a case-by-case basis. Among five precedents cited is the move by President George H.W. Bush in 1990 to grant deferred-action status to approximately 1.5 million parents and children of aliens granted legal status under the 1986 amnesty approved by Congress and signed by another Republican president, Ronald Reagan.
      Other similar moves since then have granted deferred-action status to victims of domestic violence and human trafficking. Most recently, Obama’s so-called Deferred Action for Childhood Arrivals program (DACA) removed the threat of deportation from the self-styled “Dreamers,” the under-30 immigrants who for the most part have known no other country than the United States.
      The OLC memo discloses that the office gave oral instead of written approval for Obama’s earlier, but the information only underscores the more formal green-light for the latest move. The memo also acknowledges that the latest move benefits more immigrants than any of the similar precedents, but finds the size irrelevant to its validity as long as the policy does not amount to an “abdication” of enforcing immigration laws.
      Obama took to the political hustings immediately to argue and rally support for his policy even as Republicans mounted sharp political attacks. When the litigation begins, judges will face the challenging task of tuning out the politics and focusing only on the law, which strongly supports Obama’s position.

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