Volume 103

The Constitutionality of DAPA Part I: Congressional Acquiescence to Deferred Action

by Josh Blackman

On November 19, 2014, the Department of Justice’s Office of Legal Counsel issued an opinion entitled “The Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others.” The opinion justified two new initiatives by the Department of Homeland Security. The first initiative dealt with the prioritization of removal of certain categories of aliens unlawfully present in the United States. The second initiative established a deferred action program for the parents of children categorized as U.S. citizens or lawful permanent residents (LPRs).

OLC’s opinion is of great practical importance for both general and specific reasons. As a general matter, the framework it instituted for gauging whether a particular exercise of enforcement discretion is consistent with relevant constitutional principles is likely to have continuing importance in all areas where administrative agencies exercise discretion. As a specific matter, it seeks to place the Obama Administration’s immigration initiatives on firm legal footing by justifying those broad programs as valid exercises of enforcement discretion.

The opinion founders, however, on the complexities of immigration law, and thus its specific application of the opinion’s framework to the Executive’s initiatives is ultimately unconvincing. The opinion overstates the degree to which the Immigration and Nationality Act (INA) is concerned with family unification, misapprehends the extraordinarily narrow scope of relief provided to the parents of U.S. citizen and LPR children under existing law, and misstates the limited scope of prior congressional acquiescence to deferred action programs. These flaws undermine the opinion’s key conclusion that DHS’s deferred action programs are consistent with congressional policy, and thus also call into question the ultimate judgment that these initiatives are permissible exercises of enforcement discretion. . . .

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