When Smart Lawyers Say Dumb Things

Senator Ted Cruz (R-TX) and Texas Attorney General (and governor-elect) Greg Abbott are very smart lawyers. You may or may not agree with their politics, but no one can challenge their chops as attorneys. Yet both of them are saying very dumb things about DHS executive actions on immigration, announced by the White House.

Senator Cruz took to the airwaves to state that President Obama has "no legal authority to do what he's doing" and "is claiming unilateral authority the Constitution doesn't give him."

For his part, Greg Abbott is getting ready to sue the president (again) because "our president is untethered from the law."

Those are nifty sound bites. From Joe Sixpack in a street mob, they might be understandable. But from experienced litigators (Cruz has argued before the Supreme Court nine times,) it's pathetic.

Getting a bunch of lawyers to agree on something makes herding cats look easy, but this week over 130 law professors signed on to a letter published by Associated Press. The upshot:

Our conclusion is that the expansion of the DACA program and the establishment of Deferred Action for Parental Accountability are legal exercises of prosecutorial discretion. Both executive actions are well within the legal authority of the executive branch of the government of the United States.

And on November 19, the Office of Legal Counsel (OLC) at the Justice Department came to the same conclusion: "[W]e conclude that DHS's proposed prioritization policy and its proposed deferred action program for parents of U.S. citizens and lawful permanent residents would be legally permissible." That was enough to change William Galston's mind.

When a client comes to me with a legal question, I have the ethical, moral and legal duty to tell her the truth about her case, not necessarily what she wants to hear. When it comes to immigration law, apparently lawyers Cruz and Abbott feel no such obligation to the people of Texas.