Thread: Justice Department questioned 2012 Obama DACA immigration action

Justice Department questioned 2012 Obama DACA immigration action

• Email
• Print

By JOSH GERSTEIN |
11/20/14 7:51 PM EST

The most interesting aspect of the legal advice President Barack Obama got on the immigration executive action he announced Thursday night may be what lawyers told the president he could not or should not do.

A 33-page Justice Department legal opinion made public just hours before Obama spoke concluded that he doesn't have the legal authority to offer broad deportation relief to parents of so-called Dreamers—people who came to the U.S. illegally as children and won a reprieve from deportation in a program known as DACA that Obama created in 2012.

"As it has been described to us, the proposed deferred action program for parents of DACA recipients would not be a permissible exercise of enforcement discretion," Justice Department attorney Karl Thompson wrote in the Office of Legal Counsel opinion.
The opinion also reveals, in a footnote, that Justice Department lawyers informally raised concerns about Obama's initial 2012 DACA program before it was enacted.

(Video: President Obama's full immigration address)

Thompson's legal memo about the new immigration initiatives warns the president against straying into areas untethered to policies or priorities Congress has set through legislation. "The Executive cannot, under the guides of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences," Thompson wrote. "An agency's enforcement decisions should be consonant with, rather than contrary to, the congressional policy underlying the statutes the agency is charged with administering."
A senior administration official said Thursday lawyers concluded that actions like protection for parents of dreamers were “not legally available” to the president, largely because it would be building one set of executive actions upon another.

However, that conclusion appears to have been based heavily on historical precedent as well as legal concerns. Officials said they consider Obama’s move to allow family members of U.S. citizens to receive protection from deportation to be very similar to previous moves by Presidents Ronald Reagan and George H.W. Bush, who also protected family members of individuals Congress had moved to allow to remain in the country legally.

“We were influenced by the fact that Congress already recognized the relationship between child citizens and parents as a relationship Congress wants to protect,” said the senior official who spoke on condition of anonymity.. “This was a sort of implementation of that Congressional policy as opposed to the parents of Dreamers, which would be….slightly different…We thought it was important to tie it to a Congressional policy.”

While Obama is making something of a show of not granting the Dreamer parents formal deferred action status, they are largely protected from deportation by enforcement rules that make the vast majority of them a low priority for removal from the country. In addition, some Dreamer parents will be eligible for deferred action because they also have a child who is a U.S. citizen.

“Assuming they don’t have criminal convictions, they would in all likelihood not be deported,” the official said of Dreamer parents.
That treatment arises from the basic theory of prosecutorial discretion, but administration lawyers decided that wasn’t enough to take the next step and offer Dreamer parents formal deferred deportation, which carries the prospect of a work permit.

“What we decided was that we had to tie the creation of a particular subgroup to something more than just prosecutorial discretion,” the official said. ”We didn’t think it appropriate to apply just general prosecutorial discretion and exclude a class….We just determined legally that we could not grant parents of Dreamers status essentially as a class.”

Immigrants who’ve been in the country illegally for more than five years will be eligible for deferred action if they have a US citizen child by January 1 of next year, officials said. That makes to too late for anyone to get pregnant in order to qualify, but could open the door to inducing some births early in order to help parents qualify for the program. “This is not one of those situations where you can come to the country to have a baby after this announcement,” the official said.

The release of the Justice Department legal opinion is an unusual but far from unprecedented move. While the Obama Administration has successfully fought efforts to obtain routine access to such opinions under the Freedom of Information Act, officials have put out the memos when they buttress the administration's legal arguments in a politically sensitive case, such as when Obama made a series of unusual recess appointments later deemed illegal by the Supreme Court.

While the White House may not have been able to dictate the actual legal advice it received from OLC, which sometimes differs with other lawyers in the administration and even in the White House counsel's office, it can control the way the questions put to OLC are framed. In this instance, according to the opinion, the formal questions sent to the Justice Department came from a senior Department of Homeland Security official on Wednesday, the same day the opinion was issued. Draft memos describing the programs were sent to DOJ on Monday, the opinion indicates.

It's not uncommon for White House and agency lawyers to consult extensively with OLC before a formal opinion is issued, so all involved in the deliberations likely knew what OLC's view was. Obama confirmed such discussions in comments at a press conference held Sunday, one to three days before the date on the source documents OLC cites about the new policy.

"What we’ve continued to do is to talk to Office of Legal Counsel that’s responsible for telling us what the rules are, what the scope of our operations are, and determining where it is appropriate for us to say we’re not going to deport 11 million people," Obama told reporters.

In addition, the belated DHS e-mail relaying the questions to OLC may have excluded other policy options the president considered and rejected, or which produced legal advice the White House did not wish to make public.

In fact, the new legal memo reports that Justice Department lawyers raised questions about the legality of Obama's 2012 DACA program before it was enacted.

"Our preliminary view was that such a program would be permissible, provided that immigration officials retained discretion to evaluate each application on an individualized basis," Thompson wrote in a footnote. "We explained, however, that extending deferred action to individuals who satisfied these and other specified criteria on a class-wide basis would raise distinct questions not implicated by ad hoc grants of deferred action. We advised that it was critical that, like past policies that made deferred action available to certain classes of aliens, the DACA program require immigration officials to evaluate each application for deferred action on a case-by-case basis, rather than granting deferred action automatically to all applicants who satisfied the threshold eligibility criteria."

The opinion issued Wednesday does not indicate that a formal opinion on the earlier DACA program was ever produced, nor does it assess whether the program as enacted complied in all respects with OLC's advice.

A White House spokeswoman didn't immediately respond to a request for comment on the concerns the Justice Department raised prior to announcement of the 2012 program granting deferred deportation and work permits to Dreamers.
UPDATE (Friday, 12:01 A.M.): This post has been updated with Obama's Sunday comments.
http://www.politico.com/blogs/under-the-radar/2014/11/white-house-releases-immigration-legal-opinion-199091.html

This is why we need to pass the bill that prohibits automatic birthright citizenship for children of illegal aliens, HR 140 in the US House of Representatives and S 301 in the US Senate. There is no law or Constitutional authority for what's been going on. This was some action started years ago by some uneducated government hack and it's just continued all these years, and this total nonsense must be stopped.