11/21/2014 07:49 pm ET Updated Jan 21, 2015

Immigration Reform, Lawful Authority and the Office of Legal Counsel

Last night, the President announced several actions he was taking to improve "our broken immigration system." Actions like beefing up enforcement at the borders, prioritizing enforcement against felons, gang members, suspected terrorists and recent border crossers in the interior, and deferring the deportations of otherwise law abiding but undocumented persons when deportation would break up intact families where a child was lawfully present in the United States and updating the Deferred Action for Childhood Arrivals (DACA) that he first announced in 2012.

The reaction to the President's announcement from his critics has been swift and loud. Regrettably, they have focused nearly entirely on how the President has taken these actions, ignoring entirely any engagement on the merits of the steps taken. Perhaps that is because these do indeed seem to be sensible and constructive steps, partial though they must be in the absence of legislation. If the silence on the merits signals a good deal of support for the measures themselves, the new Congress ought to take up the President's invitation to enact immigration reform, which is long overdue. Legislation, the President acknowledged, can revise, improve upon, or even supersede every action he took last night.

Instead, critics seem fixated on accusing the President of "acting alone" in violation of his oath of office, and behaving lawlessly or like an emperor or king. These attacks ought not derail constructive legislative immigration reform -- if critics want to engage in allegations of lawlessness by the President, there ought to be plenty of bandwidth to do so while at the same time fixing our broken immigration system. Even better, however, would be for critics to abandon these attacks entirely, because they are without merit and serve only to deflect attention from the underlying dysfunction of that system.

The President Has The Lawful Authority to Take Executive Action. Within our constitutional system, it is indeed the Congress that writes the laws and the President that implements them. When those laws delegate discretionary authority to the President and he exercises that discretion, he is still implementing or executing those laws as his oath of office requires -- he is acting within the authorities granted to him by previous Congresses, authority that remains in place until and unless changed by a more recent law enacted by a more recent Congress.

This is ground that has thoughtfully been covered by Walter Dellinger's post on Slate, as well as Marty Lederman's post on Balkinization, which is also the original entry in an on-line symposium on the issue. Interested readers should stay tuned in to that symposium. And readers have an even more authoritative source to consult -- indeed, THE authoritative source within the executive branch, namely a formal legal opinion of the Office of Legal Counsel that the administration released yesterday just before the President's speech.

The existence of the OLC opinion should be no surprise. President Obama was similarly attacked when he announced the initial DACA, so prudence would clearly dictate making sure the legal authorities were carefully reviewed this time around, too. (The OLC opinion reveals in a footnote that that office was consulted prior to DACA as well). This opinion is hardly a rubber stamp for boundless presidential discretion under the immigration laws. It carefully discusses the applicable limitations, even concluding that one action that had been contemplated internally -- deferring deportation for the parents of children covered by DACA -- exceeded what was permissible under existing law. At the same time, the discretion that all President's have under the Immigration and Naturalization Act and its subsequent amendments is quite substantial, and the actions the President did announce fall well within it.

{This paragraph corrected November 22, to correct the location of the post that discusses the OLC opinion} Remarkably, however a post up on the Federalist web page casts aspersions on the OLC opinion and its release. It contains an grab bag of points against the "not very long" OLC opinion (the opinion is 33 pages long, quite long enough to do its job) that seem intended to raise suspicions about it.

We Should Applaud the Release of the OLC Opinion. The first criticism is somewhat mystifying, suggesting there is something suspect about releasing the opinion before the President's speech. Far from criticizing this, we ought to be applauding the transparency of the President in showing the public the legal justifications for his actions, which in this case includes the conclusion that one of his possible actions would be unlawful, something no President is eager to hear. Yet the OLC opinion concludes that the President lacked authority to extend deferred action to the parents of children eligible for DACA, and the President did not do so. The disclosure of OLC opinions can be contentious and requests for them have been resisted by administrations, both Democrat and Republican. The merits of individual decisions not to disclose can certainly be debated. But objecting to an opinion being released contemporaneously with a presidential action is a new one for me. The suggestion that "the opinion is being used, not so much to make a legal case, but as a PR move," is equally odd. When you know that the legality of your actions will be challenged, I suppose that showing the formal legal opinion that underlies them is a part of relating to the public, but isn't providing the legal case for the actions a good thing to do when their legality is going to be called into doubt?

Next, the Federalist post says that the fact that the Office of Legal Counsel provided only oral advice prior to the DACA decision ought to "send[] up red flags." The suggestion that oral advice merits a red flag simply misunderstands the way OLC works. In my experience working there -- and I have no reason to believe that the process is different in the Obama administration -- a substantial amount of legal analysis can go into the examination of a legal question when the ultimate work product is "only" oral advice. There is no reason to believe that the legal consideration that went into the DACA decision was any less rigorous than that which lies behind the written opinion just released. Besides, we now have the formal written opinion examining the President's most recent actions, one of which is to extend DACA. The legal defense being offered now applies equally to the initial action, so it is there is plain view for all to see.

Relying Upon the Immigration and Naturalization Act is Legally Sound -- Even Required. The post next objects to OLC's conclusion that a decision for deferred action based on preserving intact families is consistent with the congressional policy that went into the Immigration and Naturalization Act back in 1957. The post seems to concede that looking for consistency with congressional policy is a guidepost to whether the President's exercise of discretion is legally sustainable. The objection, rather, is that the INA is too old and that there is no newer statute upon which to rely. But the absence of a newer statute addressing the situation of approximately 11.3 undocumented persons is what prompted the President to act. There simply is no statute that speaks directly to the situation the President is addressing, one way or the other. The House has passed a statute seeking to undo the 2012 DACA decision, but both chambers must act to create new legislation, and that has not occurred. There is no dispute that the OLC opinion accurately identifies congressional policies that are embodied in the INA, and no subsequent act of Congress has changed that. Does the post's author want to contend showing compassion in situations that would break up intact families where one member is lawfully present in the United States has ceased to be one of our policies?

There Are No Anchor Babies. The post's last ostensible objection to the OLC memo actually has nothing at all to do with its legal content, or even with its timing. Instead, the post asserts that the effect of the President's actions is to validate the "Right's" anxiety about "anchor babies." "This is the idea -- false, but persistent -- that all an alien had to do to gain lawful status in the U.S. is to have a baby here. This is not actually the case under the immigration statute. But it is precisely the case under Obama's new program..." Nothing the President has done validates this idea. As the post itself acknowledges, being eligible for deferred action as a parent of a lawfully present child under the President's actions requires satisfying numerous other conditions. More importantly -- and as the OLC opinion points out several times -- deferred action does not alter one's legal status. Such persons remain out of compliance with the requirements to remain here -- deferred action simply defers deportation. That out-of-status-but-deferred situation is not a permanent way to address the situation and that state of affairs can change -- in either direction -- by passing legislation addressing the situation. That brings the conversation full circle: The Congress ought to pass legislation that fix the broken immigration system consistent with our values. The President has taken some steps in that direction. They are assuredly legal, but they are not enough.