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02/28/2015

Marty Lederman on the Statutory Basis for DAPA
Michael Ramsey

At Balkinization, Marty Lederman: Judge Hanen's--and Michael McConnell's--mistakes about "affirmative action" in DAPA (responding to this article by Michael McConnell: Why Obama's Immigration Order Was Blocked).

Professor McConnell:

If this president can create a new legal status for aliens unlawfully present under the terms of the Immigration Act, future presidents will have the same authority to employ broad notions of “prosecutorial discretion” to gut the enforcement of whichever laws they dislike—using the excuse that “Congress has failed to act.”

The supporters of DAPA may well rue the day that presidents seized this kind of extralegal authority. Whatever immigration policy any of us may favor—and I, for one, would like to see major reform—we should all be able to agree that the executive branch must follow the law until it has been amended by Congress.

Agreed, says Professor Lederman, but in this case the statute authorizes the presidential actions through broad delegation (a possibility I acknowledged in my prior post on the matter):

So where do Judge Hanen and Professor McConnell go wrong?  Simply in this:  There is no basis for their underlying assumption that DHS would bestow upon DAPA-eligible aliens certain “benefits” that are not authorized by statute and by pre-existing regulations that have been promulgated pursuant to the notice-and-comment rulemaking process.

Extensive analysis follows.

(Josh Blackman has some different views on statutory authorization here).