Tag Archive for: separation of powers

Cyrus Mehta

JUSTICE, JUSTICE SHALL THOU PURSUE: WHY THE LAWSUIT AGAINST THE IMMIGRATION ACCOUNTABILITY EXECUTIVE ACTIONS IS A WASTE OF TIME AND MONEY

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For I was hungry and you gave me food, I was thirsty and you gave me drink, I was a stranger and you welcomed me

Matthew 25:35

A lawsuit was expected as soon as President Obama dramatically announced that his immigration executive actions could impact more than 5 million people. It is already here. On December 3, 2014, Texas took the lead with 18 other states in a lawsuitagainst the United States asserting that the President’s unilateral Immigration Accountability Executive Actions are unconstitutional.  The coalition of states in addition to Texas include Alabama, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Mississippi, Montana, Nebraska, North Carolina, South Carolina, South Dakota, Texas, Utah, West Virginia and Wisconsin. 

The complaint essentially alleges that the DHS directive violates the President’s constitutional duty to “take Care that the Laws be faithfully executed” under Article II, §3, Cl. 5 of the United States Constitution. Another basis for the complaint is that under the Administrative Procedure Act, 5 U.S.C. § 553, the President’s executive action is akin to a rule, which needs to be promulgated through notice-and-comment rulemaking. The complaint also cites APA, 5 U.S.C. § 706, which gives a federal court power to set aside an agency action that is, among other things, arbitrary or capricious, contrary to constitutional right or in excess of statutory authority.  But it reads more like a white-hot tabloid, and instead of providing a forceful legal basis, loudly proclaims in bombastic fashion several prior utterances of President Obama claiming that he could never bypass Congress. Here are two out of many examples: 

“I am president, I am not king. I can’t do these things just by myself…[T]here’s a limit to the discretion that I can show because I am obliged to execute the law…I can’t just make the laws up by myself.”

“[I]f in fact I could solve all these problems without passing laws in Congress, then I would do so. But we’re also a nation of laws. That’s part of our tradition. And so the easy way out is to try to yell and pretend like I can do something by violating our laws. And what I’m proposing is the harder path, which is to use our democratic processes to achieve the same goal. “ 

The President still went ahead and changed the law himself despite his many previous assertions that he could not, according to the complaint, as if that can be a legal basis to challenge the actions. Interestingly, the President consistent with these prior utterances of his still insists even after November 20, 2014 that only Congress can change the law and bring on meaningful reform.  The centerpiece of the President’s executive actions is to broaden deferred action, which has always been deployed by the Executive Branch. The November 20, 2014 announcement defers the deportation of people who were in unlawful status as of the date of the announcement, and who were also the parents of US citizen or permanent resident children, provided they were in the United States before January 1, 2010. The previous Deferred Action for Childhood Arrivals (DACA) program has been expanded to include those who came to the United States when they were below 16 years prior to January 1, 2010 instead of January 15, 2007. The previous age limit of 31 that was imposed in the June 15, 2012 announcement has been lifted. Eligible people who are a non-priority for enforcement purposes can apply for deferred action, and obtain employment and travel authorization. 

The lawsuit is a waste of time and taxpayers money. The authors have argued in A Time for Honest Truth: A Passionate Defense of President Obama’s Executive Actions that the President clearly has the legal authority to exercise discretion with respect to prioritizing on whom to enforce the law against, especially when Congress has not provided sufficient funding to deport 12 million undocumented people all at once. Even the conservative establishment refers to those who desire to deport 12 million as the “boxcar” crowd.  The truth is that deferred action is neither recent nor revolutionary. Widows of US citizens have been granted this benefit. Battered immigrants have sought and obtained refuge there.  Never has the size of a vulnerable population been a valid reason to say no. Even if the law suit alleges that the President does not have authority, now is a good time to remind critics about Justice Jackson’s famous concurrent opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952), which held that the President may act within a “twilight zone” in which he may have concurrent authority with Congress. Unlike Youngstown Sheet and Tube Co. v. Sawyer, where the Supreme Court held that the President could not seize a steel mill to resolve a labor dispute without Congressional authorization, the executive branch under the recent immigration actions is well acting within Congressional authorization. In his famous concurring opinion, Justice Jackson reminded us that, however meritorious, separation of powers itself was not without limit: “While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.” Id. at 635. Although President Truman did not have authorization to seize the mill to prosecute the Korean War, Justice Jackson laid a three-pronged test to determine whether the President violated the Separation of Powers clause. First, where the President has express or implied authorization by Congress, his authority would be at its maximum. Second, where the President acts in the absence of congressional authority or a denial of authority, the President may still act constitutionally within a “twilight zone” in which he may have concurrent authority with Congress, or in which its distribution is uncertain. Under the second prong, Congressional inertia may enable, if not invite, measures of independent presidential authority. Finally, under the third prong, where the President acts in a way that is incompatible with an express or implied will of Congress, the President’s power is at its lowest and is vulnerable to being unconstitutional.

Through the Immigration Accountability Executive Actions, the President is likely acting under either prong one or two of Justice Jackson’s tripartite test. INA Section 103(a)(1) charges the DHS Secretary with the administration and enforcement of the INA. This implies that the DHS can decide when to and when not to remove an alien..”  INA § 212(d)(5), which Congress also enacted, authorizes the Executive to grant interim benefits for “urgent humanitarian reasons” or “significant public benefits.”  Parole can also be used to allow promising entrepreneurs to come to the United States and establish startups, although this and many other actions to help businesses have not been attacked in the law suit. Moreover, INA § 274A(h)(3)(B) provides authority to the Executive to grant employment authorization. Even if such authority is implied and not express, Congress has not overtly prohibited its exertion but displayed a passive acquiescence that reinforces its constitutional legitimacy. Operating in Justice Jackson’s “twilight zone,” such constructive ambiguity creates the opportunity for reform through executive initiative. In terms of employment authorization issuance, Congress has rarely spoken on this except via INA § 274A(h)(3)(B), so that many instances of employment authorization issuance are purely an act of executive discretion justified by that one statutory provision. Furthermore, INA § 103(3) confers powers on the Secretary of Homeland Security to “establish such regulations, prescribe such forms or bonds, reports, entries and other papers; issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under the provisions of this Act.”

We reproduce the very penetrating and insightful comments of our esteemed colleague Jose R. Perez, who is a partner at Foster: 

It’s my hope that Federal Judge Andy Hanen in Brownsville, TX, will do the right thing and dismiss this lawsuit based on: 

·   #1: Lack of subject matter jurisdiction since the alleged cause of action is a ‘political question’ or a dogfight between the executive & legislative branches as there is no case or controversy for an Article III Court to decide;

·         #2: The plaintiffs lack ‘standing’ since the states have NOT suffered a palpable injury suffered and the ‘alleged injury’ is baseless and at best highly speculative since no undocumented alien has benefited from the executive actions of November 20, 2014; and

·         #3: Once implemented, the executive actions do NOT circumvent Congress or usurp our Constitution since President Obama has the executive authority under Article II of the U.S. Constitution and the statutory authority under the INA to grant deferred action based on law enforcement priorities as an act of prosecutorial discretion. This is an presidents have done so. [ My family and I came to the U.S. as ‘parolees’ based on President Johnson’s exercise of discretion that allowed approx. 1 Million Cubans to be paroled and to eventually benefit from the Cuban Adjustment Act of 1966, a very open-ended and most favorable statute.] 

We wish to double down on these sage comments concerning lack of state standing to bring this lawsuit for they are its Achilles heel.  This is not a case where a federal agency like the Environmental Protection Agency has declined a request by an affected state actor to regulate the emission of toxic greenhouse gas emissions whose presence in our air and water present a clear and present danger of environmental catastrophe.. For this reason, the holding by the Supreme Court that the State of Massachusetts did have requisite Article III standing to sue the EPA is fundamentally inapposite both in logic and law. Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007). Undocumented immigrants who work long hours at low pay doing the hard and dirty jobs on which we all depend but are loath to perform are not the cause or harbinger of global warming. Whatever grievances Texas and her sister states have , the proper forum for their expression and resolution in our system of governance is the Congress not the courts.  See Lajan v. Defenders of Wildlife, 504 U.S. 555, 576 (1992)..

Courts are loath to review any non-enforcement decisions taken by federal authorities. See,e.g., Lincoln v. Vigil, 508 U.S. 182, 191-92 (1993). Arizona v. United States, 132 S.Ct. 2492, 2499 (2012),   articulated the true reason why: “[a] principal feature of the removal system is the broad discretion exercised by immigration officials…Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all…” The decision by President to order ICE to focus its enforcement activities on designated priorities is a policy judgment which the courts have neither the time nor inclination to second guess: 

This Court has recognized on several occasions over many years that an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion. See United States v. Batchelder, 442 U. S. 114, 123-124 (1979); United States v. Nixon, 418 U. S. 683, 693 (1974); Vaca v. Sipes, 386 U. S. 171, 182 (1967); Confiscation Cases, 7 Wall. 454 (1869). This recognition of the existence of discretion is attributable in no small part to the general unsuitability for judicial review of agency decisions to refuse enforcement. 

Heckler v. Chaney, 470  U.S. 821, 8311 (1985) 

The Constitution neither allows nor encourages any of the state litigants in this extra-constitutional litigation to micromanage the enforcement or implementation of current immigration law or regulation. That is up to the President and those federal agencies to whom he delegates his authority: “An agency has broad discretion to choose how best to marshal its limited resources and personnel to carry out its delegated responsibilities.” Chevron v. Natural Resources Defense Council, 467 U.S. 837, 842-845 (1984). Under the oft-quoted Chevron doctrine, federal courts will pay deference to the regulatory interpretation of the agency charged with executing the laws of the United States when there is ambiguity in the statute. The courts will intrude only when the agency’s interpretation is manifestly irrational or clearly erroneous. Similarly,  the Supreme Court in Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 US 967 (2005),while affirming Chevron, held that, if there is an ambiguous statute requiring agency deference under Chevron, the agency’s understanding will also trump a judicial exegesis of the same statute.  There is simply no case or controversy here for the federal courts to settle. None of these Plaintiffs identify or present  such a “ personal stake in the outcome of the controversy as to assure the concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination.” Baker v. Carr, 369 U.S. 186, 204 (1962). Where is their standing then one wonders? In all of the hyperbolic protestations that suffuse this complaint, where rhetoric often masquerades as reality,  one looks in vain for any allegation or evidence that any of the state complainants can “ show that it has suffered a concrete and particularized injury that is fairly traceable to thte defendant and that a favorable decision will likely redress that injury.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992). 

Still, one should not be too sanguine about Judge Hanen doing the right thing who will hear this case in the United District Court for the Southern district of Texas,   Division. In US v. Nava-Martinez, a case that involved a human trafficker who sought to smuggle an El Salvadorian girl into the United States, Judge Hanen chastised the DHS for completing the crime by delivering the minor to the custody of the parent,  even though the DHS was obliged to unify the child under the 1997 Flores v. Reno, CV-85-4544-RJK, settlement agreement. Judge Hanen equated this policy to “taking illegal drugs or weapons that it had seized from smugglers and delivering them to the criminals who initially solicited their illegal importation/exportation.” Id. at 10. The plaintiffs have cleverly cited Nava-Martinezin their complaint as an example of DHS laxity encouraging illegal migrants, and also disingenuously conflated the surge of unaccompanied minors this summer with the President’s previous DACA program, even though it has been well documented that these children may have come to the US for other legitimate reasons, such as fleeing horrific gang persecution in countries such as Honduras, el Salvador and Guatemala. . A December 5, 2014 NY Times article confirms this: 

At the National Immigrant Justice Center in Chicago, lawyers interviewed 3,956 migrant children this year. Lisa Koop, associate director of legal services there, said the number of children who had heard of the 2012 program was “in the single digits.”

“It is clear that DACA was not a driving force behind the migration,” Ms. Koop said. “What we heard time and again was that violence in Central America and the need for safe haven was what prompted these children to undertake the journey north.” 

Even if Judge Hanen does not rule the way we think he should, it is hoped that the Fifth Circuit will swiftly reverse him. Indeed, the Fifth Circuit has recently recognized the supremacy of federal immigration law over state law as well as federal discretion in enforcing immigration law. In Villas at Parkside Partners v. Farmers Branch, 726 F.3d 524 (5th Cir. 2013), the Fifth Circuit struck down a local housing ordinance on preemption grounds because it conflicted with federal law regarding the ability of aliens not lawfully present in the United States to remain in the US. The Fifth Circuit also noted that the federal government could exercise discretion: 

Whereas the Supreme Court has made clear that there are “significant complexities involved in [making] . . . the determination whether a person is removable,” and the decision is “entrusted to the discretion of the Federal Government,” Arizona, 132 S. Ct. at 2506; see also Plyler, 457 U.S. at 236 (Blackmun, J., concurring) (“[T]he structure of the immigration statutes makes it impossible for the State to determine which aliens are entitled to residence, and which eventually will be deported.”), the Ordinance allows state courts to assess the legality of a non-citizen’s presence absent a “preclusive” federal determination, opening the door to conflicting state and federal rulings on the question.  

The creation of law by federal agencies in the implementation of executive initiative has become the norm rather than the exception in our system of governance , if for no other reason than that the sheer multiplicity of issues, as well as their dense complexity, defy traditional compromise or consensus which are the very hallmarks of Congressional deliberation. Despite the assertion in Article I of the Constitution that “ All legislative Powers herein granted shall be vested in a Congress of the United States,” it is far from novel to acknowledge as we must that independent federal regulatory agencies also exercise legislative powers. As Justice White noted in his dissent in INS v Chadha,462 U.S. 919, 947 (1983) (White,J., dissenting) after reviewing prior cases upholding broad delegations of legislative power:

These cases establish that by virtue of congressional delegation, legislative power can be exercised by independent agencies and Executive departments without passage of new legislation. For some time, the sheer amount of law- the substantive rules that regulate private conduct and direct the operation of government- made by the agencies has far outnumbered the lawmaking engaged in by Congress through the traditional process. There is no question that agency rulemaking is lawmaking in any functional or realistic sense of the term.

Immigration has historically been linked to foreign policy. Indeed, a core reason for the plenary federal power over immigration is precisely because it implicates real and genuine foreign policy concerns. This is another reason why the Executive enjoys wide, though not unchecked, discretion to effect changes in immigration procedures through sua sponte regulation. Indeed, it is perhaps only a modest exaggeration to maintain that the INA could not be administered in any other way.  The President’s executive action does not displace Congress as the primary architect of federal immigration policy but rather is in aid of the legislative function and, as such, is in harmony with the constitutional injunction to diversify authority. The President is not divorced from lawmaking; that is the very reason why the Framers provided an executive veto power. If the President had no role in lawmaking, why give such a weapon to limit congressional prerogative? Once we accept the fact that the Executive is a junior partner in lawmaking, then the President’s executive actions become a strong but unremarkable expression of this well-settled constitutional concept. To suggest that the President is powerless to act simply because only Congress can modify the INA is to isolate one co-equal branch of our national government from another beyond what the Constitution suggests or requires. This is not what the Framers had in mind:

Yet it is also clear from the provisions of the Constitution itself, and from the Federalist Papers, that the Constitution by no means contemplates total separation of each of these three essential branches of government…The mean who met in Philadelphia in the summer of 1787 were practical statesmen, experienced in politics, who viewed the principle of separation of powers as a vital check against tyranny. But they likewise saw that a hermetic sealing off of the three branches of Government from one another would preclude the establishment of a Nation capable of governing itself effectively.

Buckley v. Valeo, 424 U.S. 1, 121 (1976)

Not only is it appropriate for the President to direct the formulation of immigration policy on technical issues of surpassing importance, this is the way it must be; this is what the Constitution expects. The decision by President Obama to do now what he had been reluctant or unwilling to do earlier suggests not a reversal of position or a grab for imperial power but  a willingness to change, to grow, to embrace solutions that meet the exigencies of an ever-changing challenge stubbornly resistant to what has been tried before and failed. We are reminded of what President Lincoln wrote to Albert G. Hodges on April 4, 1864 : “I claim not to have controlled events, but confess plainly that events have controlled me.” In  perhaps the most famous judicial exposition of the need for pragmatic presidential initiative, we end our advocacy in confident reliance upon the still cogent observations of Chief Justice John Marshall in McCulloch v. Maryland:

To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur 

17 U. S. 316 (1819) 

The President’s proposals do nothing to inhibit or prevent Congress from enacting amendments to the INA. He has not attempted to supplant Congress when it comes to the exercise of the legislative function over which in alone enjoys plenary power.  President Obama has acted solely in furtherance of what the Congress has already done to give America the immigration policy that it needs and deserves, one that is more effective and adaptable to the exigencies of the moment so that both the nation and the immigrants who have sacrificed all to write the next great chapter in the American story can benefit in full measure.

(Guest author Gary Endelman is Senior Counsel at Foster)

Cyrus Mehta

A TIME FOR HONEST TRUTH: A PASSIONATE DEFENSE OF PRESIDENT OBAMA’S EXECUTIVE ORDERS ON IMMIGRATION

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You shall neither vex a stranger, nor oppress him: for you were strangers in the land of Egypt.

EXODUS 22:21

By Gary Endelman and Cyrus D. Mehta

November 20, 2014 was a historic night. The President announced a series of executive actions to expand enforcement at the border, prioritize deporting felons not families, and require millions of undocumented immigrants to pass a criminal background check and pay taxes in order to temporarily stay in the U.S. without fear of deportation. The authors welcome this development as they have been advocating for executive actions since 2010 to repair a broken immigration system in the face of Congressional inaction.  In The Tyranny of Priority Dates we first advocated that the President had broad authority under the Immigration and Nationality Act to ameliorate the plight of many who were caught in the crushing immigrant visa backlogs, followed by many widely disseminated blogs thereafter that further fine-tuned and refined the proposals made in our original article. We were there at the very beginning and so the executive actions personally mean a lot to us just as they mean to the millions who will get relief from our harsh immigration laws. As we summarize the executive actions, we point to our blogs that may be helpful to further advance and develop these measures.

The most audacious and bold of these executive actions is to provide deferred action to at least 4 million immigrants who on the date of the announcement are parents of US citizens and lawful permanent residents and who have continuously resided in the United States since before January 1, 2010. They also must have no lawful status on November 20, 2014, and must have also been physically present on that date and at the time of making the request for consideration of deferred action. They must also present no other factors that would make a grant of deferred action inappropriate and are not an enforcement priority.  These individuals will be assessed for eligibility for deferred action on a case-by-case basis, and then be permitted to apply for work authorization, provided they pay a fee.  Each individual will undergo a thorough background check of all relevant national security and criminal databases, including DHS and FBI databases. With work-authorization, these individuals will pay taxes and contribute to the economy. As bold as this policy seems,  in a larger sense, it stands as a reaffirmation of a well-established tradition that affords the Executive Branch wide discretion in the enforcement of our nation’s immigration laws.

Another bold move is to expand the population eligible for the Deferred Action for Childhood Arrivals (DACA) program to young people who came to this country before turning 16 years old and have been present since January 1, 2010, and extending the period of DACA and work authorization from two years to three years. DACA will be expanded to include a broader class of children.  DACA eligibility was limited to those who were under 31 years of age on June 15, 2012, who entered the U.S. before June 15, 2007, and who were under 16 years old when they entered.  DACA eligibility will be expanded to cover all undocumented immigrants who entered the U.S. before the age of 16, and not just those born after June 15, 1981.  The entry date will also be adjusted from June 15, 2007 to January 1, 2010.  The relief (including work authorization) will now last for three years rather than two.

Critics have assailed these two executive actions in isolation as being unconstitutional and usurping the power of Congress. These arguments have been made before, especially after DACA was implemented.  In Yes He Can: A Reply to Professors Delahunty and Yoo, we argued that even at the historically high levels of removal under President Obama, some 400,000 per year, this amounts to only 3-4% of the total illegal population. That is precisely why the Obama Administration has focused its removal efforts, which as stated in a letter by the former DHS Secretary Napolitano to Senator Durbin, on “identifying and removing criminal aliens, those who pose a threat to public safety and national security, repeat immigration law offenders and other individuals prioritized for removal.” The truth is that deferred action is neither recent nor revolutionary. Widows of US citizens have been granted this benefit. Battered immigrants have sought and obtained refuge there.  Never has the size of a vulnerable population been a valid reason to say no. Critics fail to consider INA Section 103(a)(1), which charges the DHS Secretary with the administration and enforcement of the INA. This implies that the DHS can decide when to and when not to remove an alien. They also fail to consider INA section 274A(h)(3)(B) which excludes from the definition of “unauthorized alien” any alien “authorized to be so employed …by the Attorney General.” After all, 8 CFR 274a.12(c)(14), which grants employment authorization to one who has received deferred action, has been around for several decades.

Courts are loath to review any non-enforcement decisions taken by federal authorities. See,e.g., Lincoln v. Vigil, 508 U.S. 182, 191-92 (1993); Massachusetts v. EPA, 127 S. Ct. 138, 1459 (2007).  It is up to DHS, rather than to any individual, to decide when, or whether, to initiate any enforcement campaign. Heckler v. Chaney,  470 US 821, 835 (1985). Arizona v. United States, 132 S.Ct. 2492, 2499 (2012)  articulated the true reason why: “(a) principal feature of the removal system is the broad discretion exercised by immigration officials…Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all…” Furthermore, critics of the executive orders do not feel constrained by the wide deference that has traditionally characterized judicial responses to executive interpretation of the INA. Under the oft-quoted Chevron doctrine that the Supreme Court announced in Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 US 837(1984), federal courts will pay deference to the regulatory interpretation of the agency charged with executing the laws of the United States when there is ambiguity in the statute. The courts will intrude only when the agency’s interpretation is manifestly irrational or clearly erroneous. Similarly,  the Supreme Court in Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 US 967 ( 2005),while affirming Chevron, held that, if there is an ambiguous statute requiring agency deference under Chevron, the agency’s understanding will also trump a judicial exegesis of the same statute.  Surely the “body of experience” and the “informed judgment” that DHS brings to INA section103 provide its interpretations with “ the power to persuade.”  Skidmore v. Swift& Co., 323 US 134,140 (1944).

It is also worth mentioning that while there is no express Congressional authorization for the Obama Administration to implement such measures, the President may act within a “twilight zone” in which he may have concurrent authority with Congress. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring). Unlike Youngstown Sheet and Tube Co. v. Sawyer, where the Supreme Court held that the President could not seize a steel mill to resolve a labor dispute without Congressional authorization, the Administration under through the executive actions is well acting within Congressional authorization. In his famous concurring opinion, Justice Jackson reminded us that, however meritorious, separation of powers itself was not without limit: “While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.

While the focus of the criticism is on the two deferred action programs that will potentially cover 5 million people, there are also executive actions that include measures to strengthen Southern  border security and to reorder removal priorities. Under this reordering top priority with respect to removal will be placed on national security threats, convicted felons, gang members, and illegal entrants apprehended at the border; the second-tier priority on those convicted of significant or multiple misdemeanors and those who are not apprehended at the border, but who entered or reentered this country unlawfully after January 1, 2014; and the third priority on those who are non-criminals but who have failed to abide by a final order of removal issued on or after January 1, 2014.  Under this revised policy, those who entered illegally prior to January 1, 2014, who never disobeyed a prior order of removal, and were never convicted of a serious offense, will not be priorities for removal.  This policy also provides clear guidance on the exercise of prosecutorial discretion. DHS will also end Secure Communities and replace it with the Priority Enforcement Programthat closely and clearly reflect DHS’s new top enforcement priorities. The program will continue to rely on fingerprint-based biometric data submitted during bookings by state and local law enforcement agencies and will identify to law enforcement agencies the specific criteria for which we will seek an individual in their custody. The list of largely criminal offenses is taken from Priorities 1 and 2 of our new enforcement priorities. In addition, we will formulate plans to engage state and local governments on enforcement priorities and will enhance Immigration and Customs Enforcement’s (ICE) ability to arrest, detain, and remove individuals deemed threats to national security, border security, or public safety.

These measures relating to immigration enforcement can hardly be seen as a power grab by President Obama, and should further insulate him from legal actions such as law suits and even impeachment. Indeed, it would border on the ridicule, as suggested by a leading Yale scholar,  if impeachment proceedings are commenced against President Obama for committing treason, bribery or other high crimes or misdemeanors. The enforcement measures in the executive actions show that they are balanced, and just like deferring the removal of low priority immigrants, the prioritization of removal of others is well within the authority of the President and are part of an overarching enforcement strategy. It is also worth reminding critics that the beneficiaries from these deferred action programs will be barred from the Affordable Care Act and will not be able to purchase health insurance or get any subsidies. These beneficiaries will also face the wrath of certain state governors who will deny them driver’s licenses as Arizona did to DACA recipients in 2012. Fortunately, in Arizona Dream Coalition v. Brewer, the Ninth Circuit struck down Arizona’s spiteful policy as being violative of the Equal Protection Clause. The decision hinged on Arizona’s refusal to accept as proof of “authorized presence” in the U.S. an employment authorization document (EAD) based on DACA category (c)(33) work while they continued to accept EADs based on (c)(9) and (c)(10) categories, which respectively correspond to applicants for adjustment of status and applicants for cancellation of removal. This decision should hopefully persuade other circuit courts to also strike down discriminatory laws that deny such recipients driver’s licenses.

There are other small bore benefits that will ensue from the executive action, but nevertheless make a meaningful and positive impact on people’s lives and endeavor to repair a broken system.  The nation demands and deserves action now; there is no need to wait. These operational adjustments  are well within the President’s  legal authority and are summarized below. Their purpose and effect is not to thwart or frustrate the will of Congress. Rather, the President seeks to make it more effective by leavening the pernicious effects of legislative sclerosis through the injection of administrative flexibility that it so badly needs. In each of the initiatives listed below, the President does not create new law, which only Congress can do, but makes the current law relevant to the unique and emerging challenges of today and tomorrow:

• Expanding the use of provisional waivers of unlawful presence to include the spouses and sons and daughters of lawful permanent residents and the sons and daughters of U.S. citizens

The provisional waiver program DHS announced in January 2013 for undocumented spouses and children of U.S. citizens will be expanded to include the spouses and children of lawful permanent residents, as well as the adult children of U.S. citizens and lawful permanent residents.  At the same time, DHS will further clarify the “extreme hardship” standard that must be met to obtain the waiver.

This can hardly be viewed as a power grab. The provisional waiver program allows those who are potentially inadmissible as a result of the 3 and 10 year bars to apply for the waivers in the United States prior to proceeding overseas for consular processing of their immigrant visas.

•  Modernizing, improving and clarifying immigrant and nonimmigrant programs to grow our economy and create jobs

DHS will begin rulemaking to identify the conditions under which talented entrepreneurs should be paroled into the United States, on the ground that their entry would yield a significant public economic benefit.  DHS will also support the military and its recruitment efforts by working with the Department of Defense to address the availability of parole-in-place and deferred action to spouses, parents, and children of U.S. citizens or lawful permanent residents who seek to enlist in the U.S. Armed Forces. DHS will also issue guidance to clarify that when anyone is given “advance parole” to leave the country – including those who obtain deferred action – they will not be considered to have departed.  Undocumented aliens generally trigger a 3- or 10-year bar to returning to the United States when they depart.

In Through The Looking Glass: Adventures of Arrabally and Yerrabelly in Immigration Land, we advocated that Matter of Arrabally, 25 I.&N. Dec. 771 (BIA 2012) should be apply to every departure under advance parole, whether it was advance parole in the context of DACA or an adjustment of status application. We are pleased that the DHS has now directed its General Counsel to issue written legal guidance in this regard. We also encourage the DHS to use its parole authority under INA 212(d)(5) to parole entrepreneurs and other immigrants into the US, especially beneficiaries of approved I-130 and I-140 petitions, as we have previously done in Comprehensive Reform Through Executive Fiat. We also point to Two Aces Up President Obama’s Sleeve To Achieve Immigration Reform Without Congress: Not Counting Family Members and Parole in Place that advocate how parole in place, if applied retroactively, can also cure unlawful presence. 

• Promoting citizenship education and public awareness for lawful permanent residents and providing an option for naturalization applicants to use credit cards to pay the application fee

To promote access to U.S. citizenship, DHS will permit the use of credit cards as a payment option for the naturalization fee, and expand citizenship public awareness. It is important to note that the naturalization fee is $680, currently payable only by cash, check or money order. DHS will also explore the feasibility of expanding fee waiver options.

• Supporting High-skilled Business and Workers

DHS will take a number of administrative actions to better enable U.S. businesses to hire and retain highly skilled foreign-born workers and strengthen and expand opportunities for students to gain on-the-job training.  For example, because our immigration system suffers from extremely long waits for green cards, DHS will amend current regulations and make other administrative changes to provide needed flexibility to workers with approved employment-based green card petitions. Individuals with an approved employment-based immigrant petition who are caught in the quota backlogs will be able to pre-register for adjustment of status to obtain the benefits of a pending adjustment.  This is expected to impact about 410,000 people.

We refer our readers to Waiting for Godot: A Legal Basis for Filing An Early Adjustment Application where we show a way for this to be done. It is well within the power of the Executive Branch to redefine what is meant by visa availability so as to allow those who are caught in the crushing visa backlogs to apply for work authorization and portability.

The “same or similar” definition will be clarified for adjustment applicants who wish to exercise job portability under INA 204(j) when their adjustment applications have been pending for more than 180 days. This is a welcome step as those who are promoted and take on higher levels of responsibilities should also be able to demonstrate that they are still in the “same or similar” occupation and thus keep their underlying green card applications valid.  The length of time in Optional Practical Training for STEM graduates will be expanded and the relationship between the student and the school will be strengthened for this period. The regulation that would authorize H-4 spouses to work will get finalized. Other changes, such as allowing STEM OPT post-master’s degree where only the first degree is in a STEM field are under consideration. A full rulemaking will be undertaken to modernize the PERM labor certification program. There will also be greater consistency with the L-1B specialized knowledge program. It is hoped that in providing guidance on specialized knowledge the DHS take into account the holding interesting reinterpretation of specialized knowledge, as discussed in Fogo De Chao v. DHS : A Significant Decision For L-1B Specialized Knowledge Chefs And Beyond.

• Visa Modernization 

A Presidential Memorandum has been issued directing the agencies to look at modernizing the visa system, with a view to making optimal use of the numbers of visa available under law.  Issues such as whether derivatives should be counted and whether past unused visa numbers can be recaptured will be included in this effort.

Although the direction provided by the Presidential Memorandum has been left deliberately vague, it is hoped that the DHS seriously consider not counting derivatives separately in the employment and family-based preferences as that will significantly reduce the backlogs. In The Family That Is Counted Together Stays Together: How To Eliminate Immigrant Visa Backlogs and Why We Can’t Wait: How President Obama Can Erase Backlogs With The Stroke Of A Pen,   we advocated that there was no explicit authorization for derivative family members to be counted under either the Employment Based or Family Based preference in the Immigration and Nationality Act. The treatment of family members is covered by an explicit section of the Immigration and Nationality Act (INA), Section 203(d), which only states that derivatives shall be entitled to the same status and same order of consideration as the principal beneficiary and says nothing about whether they should be counted as one family unit or separately. Indeed, if the DHS does pay heed to our recommendation, which has gained national acceptance and has also been mentioned in a Congressional Research Report, it will make the executive actions more meaningful. If the family and employment preferences are cleared of their backlogs, and people can apply for green cards rapidly, the lack of H-1B visas should not be as hurtful to businesses as they are today. Indeed, this reinterpretation of the INA, again well within the authority of the President, will be as audacious for legal immigrants as the deferred action programs for the 5 million undocumented immigrants.

Needless to say, all of these executive actions are well within the President’s authority whatever critics may say, and are much needed to repair a broken immigration system. Still, these executive actions are clearly no substitute for reform through Congress, and as indicated in The Fate of Executive Action After The Midterm Elections these actions should spur the Republican controlled Congress to pass better and more meaningful reforms. The President can only do so much through executive actions and cannot create new visa or green card categories, and many are bound to be disappointed. Parents of DACA recipients have also been left out.  A tentative intention to study the possibility of counting derivative family members as an integral unit rather than on an individual basis was announced, but nothing more and certainly not definite.  At the same time, these actions provide a blueprint for Congress to pass meaningful comprehensive immigration reform. They provide the template for legalizing a deserving group of immigrants who are not a priority for enforcement purposes and also seek to account for future flows by endeavoring to attract entrepreneurs, clarifying existing processes such as PERM labor certifications and the L-1B visa,  and providing relief to those who are caught up in the crushing visa backlogs. The spirit of audacious incrementalism that animates the executive orders comes from the finest American tradition of liberal reform. Such an approach sets a problem on the road to solution in the belief and expectation that future progress will follow in a way that minimizes disruption and maximizes acceptance. Once the concepts enshrined in the executive orders are established, there can be little doubt that the scope of future operations and events will grow to bring other and more significant gains.

The problems that plague our immigration system are not beyond our ability to solve them. Their continued existence is testimony to a lack of will, a failure of imagination.  If the President’s critics and his supporters cannot agree on the legality or value of his executive orders, then let them agree on legislation to replace it. As Alfred Lord Tennyson’s Ulysses so famously reminds us : “ Come my friends, tis not too late to seek a newer world.”

(Guest author Gary Endelman is the Senior Counsel of Foster)
Cyrus Mehta

THE FATE OF EXECUTIVE ACTION ON IMMIGRATION AFTER THE MIDTERM ELECTIONS

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By Gary Endelmanand Cyrus D. Mehta

For courage–not complacency–is our need today–leadership–not salesmanship. And the only valid test of leadership is the ability to lead, and lead vigorously.
Senator John F. Kennedy’s speech accepting the 1960 Democratic nomination for President
Ever since the Democrats got a drubbing in the midterm elections, questions remain about the fate of immigration reform. President Obama had promised to reform the system through executive action after the election. The question is whether he will still do it despite the Republican Party gaining decisive control over both the Senate as well as the House. Last Friday, November 7, 2014, President Obama defiantly said that he would take executive action on immigration despite howls of protests from Republican leaders. They threatened that Obama’s unilateral action in the face of defeat in the midterm election would derail reform immigration legislation.
The authors believe that executive action ought not “poison the well, a term that has been oft repeated by the GOP against Obama’s proposed executive action, although it dare be said that the well no longer contains any water! If the President has authority under the Immigration and Nationality Act to take executive action in order to improve the decrepit immigration system, we do not see how it would usurp on Congress’s authority or violate the Separation of Powers doctrine. We have shown in Two Aces Up President Obama’s Sleeve To Achieve Immigration reform Without Congress: Not Counting Family Members And Parole In Place that the President can comprehensively reform the immigration system as part of his inherent authority. There is also sufficient ambiguity in many provisions of the Immigration and Nationality Act that beg reinterpretation so that they can bring ameliorative relief to millions. A government agency’s interpretation of an ambiguous statute is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)—often abbreviated as “Chevron deference”.  When a statute is ambiguous in this way, the Supreme Court has made clear in National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005), the agency may reconsider its interpretation even after the courts have approved of it. 
Thus, there is no need for the Republicans to feel threatened by Obama’s proposed executive actions. If they do desire to pass immigration reform legislation, they can always do so and can even improve on the administrative measures that Obama can possibly implement. After all, executive action will always be limited and is no substitute for legislation. The President would only have the authority to defer the deportation of non-citizens who meet certain deserving criteria; he cannot issue them green cards or create new visa categories without Congressional action.  The President may also have authority to reinterpret ambiguous provisions, such as INA section 203(d) so that family members are all counted as a single unit rather than separately, thereby reducing or even eliminating much of the crushing backlogs in the family and employment-based preferences.  Indeed, Obama’s executive action could be conditioned on Congress passing meaningful immigration reform legislation, upon which such action can be withdrawn. Subsequent immigration legislation from Congress can also incorporate some of the administrative measures, such as not counting family members separately. The notion of not counting family already exists in S. 744, which was passed by the Senate in a bipartisan manner in June 2013, and which the House has never taken up. Indeed, the House can still vote on this measure today and can pass comprehensive immigration reform even before Obama acts.
The question is whether the GOP is ready to pass immigration legislation. The real reason that S. 744 was not taken up in the GOP controlled House, even prior to the midterm elections, was the dislike that many House members in legalizing millions of undocumented people who have deep ties with the United States and who are also part of American families. This dislike is grounded in nativist tendencies that many GOP House members have shown, and who receive support from xenophobic organizations such as NumbersUSA and Federation for American Immigration Reform. Even if President Obama gives the new GOP Congress time to enact immigration legislation, they may never be able to do so because of the nativist element within the party that will always be opposed to any immigration measures save border security and tough immigration enforcement.
Executive action on immigration is hardly novel.  After Castro took power in Cuba, Presidents Eisenhower, Kennedy and Johnson paroled in more than 900,000 Cubans.  Seven years later, Congress signified its approval through enactment of the Cuban Adjustment Act in 1966.  In recent decades, when emergencies erupted and humanitarian crises presented themselves, Presidents of both political parties have not hesitated to act on their own initiative outside the customary channels of legislative activity, often to protect large numbers of vulnerable immigrants from deportation. This has happened over 20 times since the mid-1970’s.  In almost all such instances, the Congress subsequently ratified such executive orders with appropriate legislation. This is, for example, what happened at the close of World War II when President Truman allowed 250,000 European refugees to enter or remain in the United States; three years later, in 1948, Congress enacted the Displaced Persons Act, allowing 400,000 additional admissions. In April 1975, at the end of the Vietnam War, President Ford asserted his parole authority to sanction the evacuation of 200,000 South Vietnamese. Further congressional approval of President Ford’s executive order came in 1980 with enactment of the Refugee Act making possible the resettlement of 1.4 million Indochinese people. That same year, President Carter took in 130,000 Mariel Cubans who eventually obtained “Cuban-Haitian entrant status” under President Reagan.  Six years later, the Immigration Reform and Control Act made these Cuban-Haitian entrants lawful permanent residents of the United States. The next year, Attorney General Meese ordered the legacy INS not to remove some 200,000 Nicaraguans and, a little after that, extended similar protection to 190,000 Salvadorans seeking to escape from the horrors of civil war. Ten years after Attorney General Meese first acted, Congress made possible their adjustment of status. In 1989, following Tiananmen Square, the Bush Administration granted Deferred Enforced Departure to 80,000 Chinese students studying here; three years later, Congress paved the way for their green card status through the Chinese Student Protection Act. The point is always the same and remains instructive today: Executive Action in immigration is always a prelude to congressional legislation, not a substitute for it nor a barrier to its enactment.
President Obama is also in a bind now and of his own doing. He had promised to take executive action well before the midterm elections, but delayed doing so after being persuaded by Democratic Senators who were facing defeat such as Mark Pryor and Kay Hagan, and who in any event lost on November 2, 2014. Obama’s delay in reforming the broken immigration system through executive action thus backfired. The authors believe that had he taken immigration action prior to the election, it may have energized some of his base who could have turned up in the election. Perhaps, Mark Udall of Colorado may not have lost if he had been less ambivalent about immigration,   and if Obama had been able to implement a major historic immigration initiative. The deferred action initiative for immigrant youth prior to the Presidential election in 2012 certainly helped Obama’s victory. Obama had promised immigration reform to the Hispanic community and has to live up to that promise in order to secure his legacy, and to improve the chances of Democratic Presidential candidates in 2016. It would be harder for him to implement administrative immigration reform now that his party has lost control of the Senate, but he still has the authority to do so and he must.
The political imperative for executive action is undeniable. According to an analysis of census data by the Center for American Progress, the Latino population in America increased by 43% in the first decade of the 21st century.  This year, 24.8 million Latinos were eligible to vote; in terms of eligible voters, they accounted for 11.3% of the entire population.  Over the next four years, experts anticipate that more than 4 million Latino voters will be added to the rolls. This is a 17% increase in time for the 2016 election. The potential impact in key battleground states could be decisive. In Florida alone, projections by the Center for American Progress are that 600,000 Hispanics (as compared to 125, 000 new Anglo voters) will be eligible to vote in the next presidential election. In Texas, a state without which it would be virtually impossible for the GOP to win the White House, roughly 900,000 new Hispanic voters are expected to join the electorate by 2016, washing away the projected Anglo voter increase of 185,000.  Remember also that more than 90% of Latinos under age 18 are US citizens and that 800,000 Latinos become voter eligible each year as the Anglo share of the American electorate continues to fall each election cycle
There is a political opportunity here for the Republicans if they can recognize it. The re-election of two Hispanic Republican Governors – Susan Martinez in New Mexico and Brian Sandoval in Nevada – show that the Hispanic vote can no longer be taken for granted.  Texas Attorney General Greg Abbott won 44% of the Hispanic vote in thumping Democratic State Senator Wendy Davis by 30 points. In Georgia, Republican Governor Nathan Deal rode to re-election in no small part on the basis of 47% of the Hispanic vote while Senator-elect David Perdue defeated his Democratic challenger Michelle Nunn, daughter of former Senator Sam Nunn, having earned 42% of the Hispanic vote. In an election eve poll by Latino Decisions,  some 67% of those surveyed revealed that immigration was either the most or one of the most important issues. For those political junkies interested in a state by state breakdown, we offer this also for their reading pleasure. If the Republicans recognize that they can woo the Hispanic electorate in their favor  in light of these recent trends, it would be in their best interest to focus on passing comprehensive immigration legislation even while Obama takes executive action.
In 1924, in a vain effort to tap down the anticipated political influence of surging Jewish and Catholic immigrant populations from Southern and Eastern Europe, the Republican Party created a national origins quota using 1890 as a baseline population year to increase Protestant migration from Northern and Western Europe.  This remained in effect until its abolition in 1965. But, it did not work. The children and grandchildren of those disfavored ethnic and religious groups who had already made it to the New World before the gates closed did not forget this slap in the face and became the cornerstone of a New Deal coalition that swept the Democratic Party to national victory in 5 straight presidential elections. For the Republican Party to block President Obama now would be to repeat that historic mistake and consign itself to minority status on the presidential level for decades to come. It would be a political miscalculation of epic proportions. The stakes are no less high for the Democrats. No longer competitive in the states of the Old Confederacy, if they want to retain the electoral college advantage and popular vote majority they have enjoyed in the last 6 presidential elections, the Democratic Party must seize and hold the high ground in  the key states of Florida, Arizona, Nevada, Colorado, New Mexico as well as retain their dominant position in California. Much as civil rights has spelled their political irrelevance in the Old South, immigration can be their salvation in the battleground swing states where the Hispanic vote is and will remain the path to power. Both political parties have a vested interest in a robust embrace of immigration reform. For America’s sake, let us devoutly wish that they realize it. 

(Guest author Gary Endelman is the Senior Counsel at Foster)