It is interesting to
read the restrictions on the president’s power the Department of Justice’s Office of Legal Counsel (OLC) made on
this executive order.
First, we learn that the President did not obtain an OLC memo for his 2012 DACA [Deferred Action for Childhood Arrivals] program. Rather, only oral advice was given. We also learn that OLC limited DACA, and explained that the deferred action
could not be given as a class. Rather it must be given on a case-by-case basis.
[snip]
Second, based on this initial device, the OLC memo makes a very strong effort at crafting a line between
prosecutorial discretion and abuse of discretion. While there are many citations to
Hackler v. Chaney, the argument boils down to this point:
when deferrals must be made on a case-by-case basis, this does not amount to an abdication of enforcing the law, and a transformation into rewriting the law.
[snip]
Third, the memo explains that deferring deportations of parents of U.S. Citizens or Lawfully Present Residents
is permissible, because there is a path to citizenship for the parents, through the kids.
[snip]
Fourth, the memo makes clear that the parents of the DACA recipients are
not eligible for deferrals due to the very important reason I noted yesterday –
they do not have a pathway to citizenship. Therefore, this would not be a temporary gap.
[snip]
Fifth, the memo address whether size matters. In effect, addressing whether this
unprecedented expansion of power is lawful.
First, it concedes that the size of the program exceeds that of any previous deferred action.
[snip]
I pause to note that this is a remarkable limitation imposed by OLC on the President’s power. I am very glad to see this actually exists. Though, it seems that DHS was okay with this authority.
Sixth, the memo repeats at several points a discussion of acquiescence.
Congress has acquiesced to the President’s deferred action, and given the Executive a de facto license of sorts to proceed.
[snip]
Seventh, in perhaps an indirect reference to attempts to defund the program, the memo notes that the action would be “borne almost entirely” by application fees–something Congress arguably cannot touch. I don’t think this point was inadvertent, as there are already
debates about whether program can be defunded.
[snip]
Eighth, as for the line-drawing issue, the memo seems to acknowledge that Youngstown controls, and that
executive discretion cannot be absolute.
Immigration officials’ discretion in enforcing the laws is not, however, unlimited. Limits on enforcement discretion are both implicit in, and fundamental to, the Constitution’s allocation of governmental powers between the two political branches. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587– 88 (1952).
Obama sites prosecutorial discretion applied to this EO, but that can only be applied to a case by case basis, not a wide sweeping declaration for future cases.
