Category Archives: immigration

The Justices Lay Down the Law

By David B. Rivkin Jr. and Lee A. Casey

June 27, 2017, in the Wall Street Journal

In one of the last decisions of its term, the U.S. Supreme Court dealt a clear rebuke to politicized lower courts. The justices’ unanimous ruling in Trump v. International Refugee Assistance Project upholds both the integrity of the judiciary and the Supreme Court’s own authority.

The case came to the justices from two federal appellate courts. They had upheld trial judges’ orders halting enforcement of President Trump’s “travel ban” executive order, which temporarily limits entry to the U.S. by nationals from six countries. The court will hear the appeal on the merits in October. On Tuesday it held unanimously that the executive order can be immediately enforced, with narrow exceptions, until they address the merits of these cases in the fall.

The challenges to the order claimed it violated the First Amendment’s protection of religious freedom and exceeded the president’s authority under immigration law. Both the substance and tone of these decisions created an unmistakable impression that a portion of the judiciary has joined the anti-Trump “resistance.” Not only did the lower-court judges defy clear and binding Supreme Court precedent, they based much of their legal analysis, incredibly, on Candidate Trump’s campaign rhetoric.

The high court didn’t rule entirely in the administration’s favor. By a 6-3 vote, with Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissenting, it held that the individuals who originally challenged the order could continue to do so, as could a carefully defined class of “similarly situated” persons with “close familial” relationships to individuals in the United States, along with institutions that can show a “formal, documented, and formed in the ordinary course” relationship to a U.S. entity.

That, the court specifically cautioned, is not an invitation for evasion by immigration advocates: “For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.”

That exception, Justice Thomas noted for the dissenters, was a “compromise”—most likely the product of Chief Justice John Roberts’s effort to achieve a unanimous decision. Given the circumstances, this was a good outcome. It lends the imprimatur of the full court to the rebuke of the lower courts, and avoids the kind of partisan split that prevailed in both the Fourth and Ninth Circuit Courts of Appeals. All nine justices are also now on record supporting the proposition that the vast majority of foreign nationals cannot claim a constitutional right to enter the United States.

When the court reviews the merits of the case in the fall, however, such considerations will be out of place. While courts can adjudicate cases involving immigration and other foreign affairs issues, judicial engagement in this space is fundamentally different than in domestic affairs. In an area of decision-making that involves both institutional knowledge of international affairs and continuous access to classified information, great deference is in order from the courts. If the courts wade into this area, they would undermine both national security and respect for the judiciary. The perception that judging is swayed by political or ideological considerations would be particularly calamitous in this area. Better a 5-4 decision articulating this view clearly than a unanimous but equivocal one.

The odds of a clear outcome are good. As Justice Thomas pointed out, his colleagues’ “implicit conclusion” is that the administration is likely to prevail on the merits. The high court’s own precedent in this area is clear. Nonresident aliens have no constitutional right to enter the U.S. When denying entry, the president need only provide a “facially legitimate and bona fide” justification. As the court held in Kleindienst v. Mandel (1972), once that justification is established, there is no further inquiry or balancing for the courts to make.

Any other decision would be both inconsistent with the court’s precedent and injurious to the Constitution’s separation of powers. It would also compromise the president’s ability to defend the nation at home and abroad and cause grave harm to the judicial branch in maintaining its own critical constitutional role.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/the-justices-lay-down-the-law-1498604382

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The Fourth Circuit Joins the ‘Resistance’

Another court has weighed in against President Trump’s executive order temporarily limiting entry to the U.S. of aliens from six terrorist hotspot countries in Africa and the Middle East. In ruling against the order last week, the Fourth U.S. Circuit Court of Appeals defied Supreme Court precedent and engaged the judicial branch in areas of policy that the Constitution plainly reserves to the president and Congress. The high court should reverse the decision.

In International Refugee Assistance Project v. Trump, the Fourth Circuit affirmed a Maryland district judge’s nationwide injunction halting enforcement of the president’s order. Chief Judge Roger Gregory, writing for the 10-3 majority, acknowledged that the “stated national security interest is, on its face, a valid reason” for the order. But he went on to conclude that the administration acted in bad faith based on, among other things, “then-candidate Trump’s numerous campaign statements expressing animus towards the Islamic faith.”

Whatever one may think of that conclusion as a political matter, as a legal matter the judges overstepped their bounds. The controlling case is Kleindienst v. Mandel (1972), in which the Supreme Court rejected a petition from American scholars seeking admission to the country on behalf of a foreign colleague who had been kept out because he advocated communism. The plaintiffs argued that the government’s refusal to admit their colleague on account of his views violated their First Amendment rights. The justices upheld his exclusion and made three things clear: first, aliens have no constitutional right to enter the U.S.; second, American citizens have no constitutional right to demand entry for aliens; and third, the decision to deny admission to an alien must be upheld if it is based on “a facially legitimate and bona fide reason.”

 The high court has repeatedly reaffirmed and followed Mandel. Fiallo v. Bell (1977) rejected a challenge to immigration preferences that openly favored legitimate over illegitimate children and female U.S. nationals over male—distinctions that almost certainly would have been found unconstitutional in a domestic-policy context. In Kerry v. Din (2015), the justices upheld visa denial for the complainant’s husband, who had been a member of the Taliban. When the executive branch makes a decision “on the basis of a facially legitimate and bona fide reason,” Justice Anthony Kennedy wrote, quoting Mandel, the judiciary can “ ‘neither look behind the exercise of that discretion, nor test it by balancing its justification against’ the constitutional interests of the citizens the visa denial might implicate.”

In holding that Mr. Trump acted in bad faith, the Fourth Circuit fundamentally misconstrued Justice Kennedy’s opinion in Din,which nowhere suggested that, once the government had articulated a facially legitimate purpose, the courts could weigh whether there might have been an additional, improper purpose. As the Fourth Circuit dissenters explained, Mandel requires only a facially legitimate and facially bona fide reason.

Any other standard would constitute an invitation to the judiciary to direct the nation’s foreign and defense policies. Having misapplied Din, the Fourth Circuit went on to apply a standard domestic case-law analysis, under which the existence of a discriminatory purpose essentially dooms the exercise of governmental authority irrespective of other justifications. Under that approach, the government would have lost in Mandel, Fiallo and Din.

If the Fourth Circuit’s reasoning were to stand, it could cripple the president’s ability to defend the country. The judges claim Mr. Trump’s campaign statements, supposedly hostile to Islam rather than Islamist terror, transform his order into an “establishment” of religion in violation of the First Amendment. If the president is forbidden to impose temporary limitations on immigration from any Muslim-majority nations, it would follow that he is prohibited from taking any hostile or unfavorable actions, including the use of economic sanctions or military force, toward any Muslim-majority nation.

Making foreign policy is not the judiciary’s job, and the court’s decision in this case is in direct conflict with the Supreme Court’s admonition in Mandel that courts may not review the president’s exercise of discretion on foreign affairs—or balance it against asserted constitutional interests—once a facially legitimate and bona fide reason has been articulated. Further, the executive order is clearly authorized by Congress under the Immigration and Nationality Act. As Justice Robert Jackson famously observed in Youngstown v. Sawyer (1952), the president’s authority is most formidable when he is acting with Congress’s consent.

It is therefore difficult to avoid the conclusion that the Fourth Circuit and the other courts that have stayed Mr. Trump’s executive orders on immigration are engaged in the judicial equivalent of the “resistance” to his presidency. Judges are, in effect, punishing the American electorate for having chosen the wrong president. That is not the judiciary’s role. Every federal judge has an obligation to accept the limitations imposed by the Constitution on his power—to exercise “neither force nor will, but merely judgment,” as Hamilton put it in Federalist No. 78.

The government is likely to seek an emergency Supreme Court stay of the Fourth Circuit’s decision. That may be difficult, because it requires a showing of “irreparable harm.” But even without a stay, there is little doubt the Supreme Court will remain faithful to its precedents and reverse the Fourth Circuit’s wrongheaded decision.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/the-fourth-circuit-joins-the-resistance-1496071859

The Ninth Circuit Ignores Precedent and Threatens National Security

The Ninth U.S. Circuit Court of Appeals violated both judicial precedent and the Constitution’s separation of powers in its ruling against President Trump’s executive order on immigration. If the ruling stands, it will pose a danger to national security.

Under normal rules of standing, the states of Washington and Minnesota should never have been allowed to bring this suit. All litigants, including states, must meet fundamental standing requirements: an injury to a legally protected interest, caused by the challenged action, that can be remedied by a federal court acting within its constitutional power. This suit fails on every count.

The plaintiff states assert that their public universities are injured because the order affects travel by certain foreign students and faculty. But that claim involved no legally protected interest. The granting of visas and the decision to admit aliens into the country are discretionary powers of the federal government. Unadmitted aliens have no constitutional right to enter the U.S. In hiring or admitting foreigners, universities were essentially gambling that these noncitizens could make it to America and be admitted. Under the theory of standing applied in this case, universities would be able to sponsor any alien, anywhere in the world, then go to court to challenge a decision to exclude him.

It is also settled law that a state can seek to vindicate only its own rights, not those of third parties, against the national government. The U.S. Supreme Court held in Massachusetts v. Mellon (1923) that it is not within a state’s duty or power to protect its citizens’ “rights in respect of their relations with the Federal Government.” Thus the plaintiffs’ claims that the executive order violates various constitutional rights, such as equal protection, due process and religious freedom, are insufficient because these are individual and not states’ rights.

Even if states could articulate a concrete injury, this is not a case in which the courts ultimately can offer redress. The Constitution grants Congress plenary power over immigration, and Congress has vested the president by statute with broad, nonreviewable discretionary authority to “suspend the entry of all aliens or any class of aliens . . . he may deem to be appropriate” to protect “the interest of the United States.” Numerous presidents have used this authority to suspend entry of aliens from specific countries.

Further, as the Supreme Court explained in Knauff v. Shaughnessy (1950), the authority to exclude aliens “stems not alone from the legislative power but is inherent in the executive power to control the foreign affairs of the nation.” In issuing the order, the president was acting at the apex of his authority. As Justice Robert Jackson noted in Youngstown v. Sawyer (1952): “When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” That point the Ninth Circuit ignored entirely.

The order, frequently mischaracterized as a “Muslim ban,” is actually directed at seven countries that the president believes present a particular threat to U.S. security—a view with which Congress agreed in 2015. All are beset by terrorists and so uncertain and chaotic that proper vetting of potential refugees and immigrants is virtually impossible.

President Obama chose to toughen vetting standards for these countries’ nationals rather than bar their entry completely. But if Mr. Trump has a different view of the threat, it is not up to the courts to decide who is right. This is a classic example of a nonjusticiable “political question,” involving matters constitutionally vested in the president and Congress.

Judges—were they adjudicating a suit brought by a party with standing—could overturn the president’s order if it entailed clear violations of due process or equal protection. But attempting to discern Mr. Trump’s motivation in selecting these countries exceeds the judiciary’s proper constitutional role. Judges scrutinize government motives in the domestic context, if presented with allegations that facially neutral governmental action is motivated by invidious discrimination. That inquiry is inappropriate in the foreign-policy sphere.

The Ninth Circuit’s decision represents an unprecedented judicial intrusion into the foreign-affairs authority of Congress and the president. The stakes transcend this particular executive order and even immigration issues generally. By removing restrictions on standing and other limitations on the exercise of judicial power, the Ninth Circuit would make the courts the ultimate arbiters of American foreign policy. The ruling risks creating both a constitutional and a security crisis. It must be reversed.

Messrs. Rivkin and Casey practice constitutional and appellate law in Washington and served in the White House Counsel’s Office and U.S. Justice Department during the Reagan and George H.W. Bush administrations.

Source: https://www.wsj.com/articles/the-ninth-circuit-ignores-precedent-and-threatens-national-security-1486748840

Can Trump cut off funds for sanctuary cities? The Constitution says yes.

By David Rivkin and Elizabeth Price Foley

December 7, 2016, in the Los Angeles Times

But whatever one thinks about Trump’s strategy, it almost certainly would pass muster at the Supreme Court.Several cities and public universities have vowed to resist President-elect Donald Trump’s plan to deport undocumented criminals by doubling down on sanctuary policies. In response, Trump has pledged to curtail federal funding for sanctuary providers. Activists, predictably, are crying foul, and some legal scholars, such as Harvard’s Noah Feldman, have even claimed that such a response would be unconstitutional.  

Feldman and others point to New York v. United States (1992) and Printz v. United States (1997), in which the Supreme Court concluded that the federal government cannot conscript state or local officials to carry out federal law. The federal government must enforce its own laws, using federal personnel. So when state or local police arrest immigrants who are present in the country illegally, they are under no obligation to deport them, as deportation is the responsibility of the federal government alone. 

This “anti-commandeering” doctrine, however, doesn’t protect sanctuary cities or public universities — because it doesn’t apply when Congress merely requests information. For example, in Reno v. Condon (2000), the Court unanimously rejected an anti-commandeering challenge to the Driver’s Privacy Protection Act, which required states under certain circumstances to disclose some personal details about license holders. The court concluded that, because the DPPA requested information and “did not require state officials to assist in the enforcement of federal statutes,” it was consistent with the New York and Printz cases.

It follows that, consistent with the anti-commandeering doctrine, Congress can require state, local or university police to tell federal agents when they arrest an immigrant present in the country illegally.

It’s true that cities such as Los Angeles instruct city employees not to ask about immigration status, but they may still have access to that information. Under California law, for example, driver’s licenses issued to immigrants in the country illegally contain prominent distinguishing language stating, “federal limits apply.” Indeed, Congress could specify that licenses issued to immigrants in the country illegally must include a distinguishing feature, or they won’t be accepted for federal purposes, such as TSA airport security. Congress already has enacted the Real ID Act, which mandates that driver’s licenses display certain details.

A separate constitutional doctrine, the anti-coercion doctrine, likewise won’t shield sanctuaries. This doctrine holds that while Congress may impose conditions on receipt of federal funds, it cannot coerce states into accepting those conditions.

In the 1980s, Congress passed a law withholding 5% of highway funds from any state that refused to adopt a minimum drinking age of 21. The Supreme Court, in South Dakota v. Dole (1987), upheld it. Because highway funds are expended — in part — to ensure safe travel, the court reasoned that raising the drinking age was “relevant to the federal interest in the project and the overall objectives thereof.” More significantly, withholding 5% of federal funds wasn’t coercive because while it represented a loss of $615 million dollars, it was only 0.19% of states’ total budgets.

By contrast, in NFIB v. Sebelius (2012), the Supreme Court found that Congress violated the anti-coercion doctrine. Specifically, in the Affordable Care Act, Congress withheld 100% of states’ Medicaid funding if they didn’t expand those programs. A court plurality characterized this as a coercive “gun to the head” because it involved a loss of over $233 billion dollars — more than 20% of states’ budgets.

The South Dakota and NFIB cases teach that Congress can cut off funds if the conditions imposed are relevant “to the federal interest in the project” and the threatened loss of money doesn’t amount to a “gun to the head,” defined by a substantial percentage — approaching approximately 20% — of states’ budgets.

Congress certainly could meet these standards. Many federal programs provide billions to universities and state and local law enforcement. Provided the percentage withheld didn’t approach the 20% threshold, it should be constitutional. As with the highway funds in South Dakota, these programs are designed in part to improve safety of campuses and communities. This goal would be furthered by withholding funds from cities and universities that provide sanctuary for criminals present in the country illegally. Such individuals, by definition, not only are unvetted by the federal government, but have committed crimes while here.

Whatever one’s view of the best immigration policy, it should be uniform. Some, including the Washington Post’s editorial board, have suggested that Congress should give sanctuary cities flexibility to report only those who’ve committed the most serious violent offenses. But precisely which criminals should be subject to deportation requires resolution by Congress, not each city or university.

Sanctuary policies create Balkanization on an issue with important foreign policy implications and corresponding potential for diplomatic embarrassment. As the Supreme Court affirmed in Arizona v. United States (2012), “the removal process is entrusted to the discretion of the Federal Government” because it “touch[es] on foreign relations and must be made with one voice.”

The Constitution is clear that power to determine deportation policies belongs to Congress, not states, municipalities or universities.

David Rivkin and Elizabeth Price Foley practice appellate and constitutional law in Washington, D.C. Rivkin served at the Department of Justice and the White House Counsel’s office during the Reagan and George H.W. Bush administrations. Foley is also a professor of constitutional law at Florida International University College of Law.

Source: http://www.latimes.com/opinion/op-ed/la-oe-rivkin-foley-sanctuary-city-20161207-story.html

When bad Obama policies collide

By Elizabeth Price Foley and David B. Rivkin Jr. — Tuesday, March 10, 2015

Since its partisan passage in 2010, Obamacare has traversed a rocky road. President Obama has taken numerous executive actions to delay and modify the poorly written law in an effort to ease the political consequences of full implementation and make it work. However, in the president’s zeal to rewrite yet another area of law — immigration — he’s sabotaged one of Obamacare’s primary goals: expanding employer-sponsored health insurance.

The president’s executive actions on immigration — the major one of which is currently on hold due to a court order — confers two specific benefits upon approximately 6 million individuals who have entered this country illegally or overstayed their visas. First, they are completely exempted from deportation. Second, they are granted work permits. These unilaterally conferred benefits are powerful evidence that the president isn’t just exercising executive “discretion” by prioritizing enforcement of existing immigration law — he is rewriting it.

This massive influx of now-lawful workers will predictably reduce job opportunities for U.S. citizens and lawful residents. But beyond this obvious negative impact, granting work permits to these individuals will have a subtler, equally pernicious effect: It will encourage employers to hire these 6 million individuals over U.S. citizens and legal residents. This is due to Obamacare’s structure.

Under Obamacare, employers must pay a tax — called the “employer responsibility” tax — if they either fail to offer insurance altogether, or they offer “substandard” insurance. The employer responsibility tax is hefty, ranging between $2,000 to $3,000 per year, and is payable for every full-time employee who buys health insurance on an exchange and receives a tax subsidy as a result. The idea is to incentivize employers to offer generous insurance coverage, thus keeping workers off the exchanges, and away from tax subsidies. If no full-time worker receives a tax subsidy for buying health insurance, the employer will pay no employer responsibility tax.

Under this scheme, the “ideal” worker — in terms of minimizing exposure to the employer responsibility tax — is a worker who is incapable of obtaining a tax subsidy for buying health insurance. Who are these workers? One large category is the 6 million immigration action beneficiaries. As Homeland Security Secretary Jeh Johnson confirmed at a recent hearing of the House Homeland Security Committee, beneficiaries of the president’s immigration actions “will not be eligible for comprehensive health care, ACA.” That is, they won’t receive government subsidies to purchase health insurance.

Because the 6 million immigration beneficiaries aren’t eligible for Obamacare tax subsidies, hiring them reduces employers’ chances of triggering the employer responsibility tax. Employers have a powerful financial incentive to hire them in place of U.S. citizens and permanent residents. The president’s unilateral grant of work permits, combined with the fact that these workers cannot trigger the employer responsibility tax, makes those workers significantly more attractive.

To make matters worse, recent reports indicate that millions of U.S. citizens and lawful residents — who are eligible to receive Obamacare tax subsidies — have opted to defy the individual mandate and forego buying expensive health insurance. Under the statute, that’s supposed to trigger a tax, too, but the president has effectively gutted this provision by unilaterally creating 19 categories of exemptions, including a blanket one for “general hardship.”

Because individuals who don’t buy health insurance won’t be claiming any Obamacare tax subsidies, they — like the 6 million immigration action beneficiaries — cannot trigger the employer responsibility tax. Both of these categories of workers are more attractive to hire, because they will not, by definition, have subsidized health insurance under Obamacare. The inevitable result is that more workers will lack employer-provided health insurance coverage.

The president isn’t a one-person lawmaker. He doesn’t have the power in our constitutional regime to fix laws he thinks are broken. When a president does so, he not only intrudes on Congress’ power, but also creates unpredictable repercussions for other laws. It’s no small irony that, by unilaterally attempting to fix our immigration law, Mr. Obama has undermined his own signature legislative achievement.

Elizabeth Price Foley is a constitutional law professor at Florida International University College of Law. David B. Rivkin Jr. is a partner at the firm Baker Hostetler LLP, and served in the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations.

Source: http://www.washingtontimes.com/news/2015/mar/10/elizabeth-price-foley-david-rivkin-jr-obamas-amnes/

Obama’s Immigration Enablers

By DAVID B. RIVKIN JR. And ELIZABETH PRICE FOLEY

A few hours before announcing his new immigration policy, President Obama received an opinion blessing its legality from the Office of Legal Counsel. Regrettably, the OLC’s made-to-order legal analysis is shockingly flawed in five major respects.

First, the OLC justified the policy as a prioritization of government’s “limited resources.” But the executive order does more than prioritize. It rewrites existing law. Illegal immigrants won’t be deported if they aren’t a threat to national security, public safety or border security. Beyond these three categories, deportation may be pursued only if it serves an “important federal interest.”

Under current law, by contrast, anyone entering the U.S. illegally is a “deportable alien” who “shall, upon the order of the Attorney General, be removed.” The president’s policy transforms an entire category of aliens deemed deportable into two different categories, whereby some are deportable and some aren’t. This is a shift in kind, not merely degree.

A president prioritizing resources would do what previous presidents have done: enforce the entirety of immigration law, while allowing prosecutors to make case-by-case determinations. By announcing a global policy of nonenforcement against certain categories, Mr. Obama condones unlawful behavior, weakening the law’s deterrent impact, and allows lawbreakers to remain without fear of deportation. As he puts it, “All we’re saying is we are not going to deport you.” These individuals are no longer deportable, although Congress has declared them so.

Second, the OLC incorrectly concludes that the president’s plan involves case-by-case scrutiny. The OLC admits “a general policy of nonenforcement that forecloses the exercise of case-by-case discretion poses ‘special risks’ that the agency has exceeded the bounds of its enforcement discretion.” It argues, however, that there are no “removable aliens whose removal may not be pursued under any circumstances.” And although the policy “limits the discretion of immigration officials . . . it does not eliminate that discretion entirely.”

It is absurd to assert that the theoretical possibility that a small percentage of the more than four million likely applicants may be rejected is meaningful “prosecutorial discretion.” This is illustrated by Mr. Obama’s 2012 Deferred Action for Childhood Arrivals policy. Of 521,815 applications considered on a “case-by-case” basis, only 3% have been rejected. With an approval rate of 97%, the president’s criteria are rubber-stamped. This is a categorical exemption from the law.

Third, even if Mr. Obama’s plan is accepted as case-by-case discretion, it creates a remedy—deferred deportation—for a category that Congress hasn’t allowed and the president lacks authority to create. The OLC memo lumps deferred deportation with other kinds of deportation relief, such as parole, temporary protected status and deferred enforced departure. But each of these has been specifically authorized by Congress, or—in the case of deferred enforced departure—is supported by the president’s foreign-affairs power.

While Congress has authorized deferred deportation for specific categories, lawmakers haven’t authorized it for those to whom President Obama wishes to extend it—the parents of U.S. citizens and lawful permanent residents. The OLC claims that this isn’t important because deferred deportation “has become a regular feature of the immigration removal system that has been acknowledged by both Congress and the Supreme Court.” It cites the 1999 Reno v. American-Arab Anti-Discrimination Committee case.

In that case, members of the Palestinian Liberation Front claimed the Immigration and Naturalization Service’s refusal to defer their deportation constituted discrimination. The court disagreed, ruling that a recently passed statute was “clearly designed to give some measure of protection to ‘no deferred action’ decisions” and deny adjudication of such discrimination claims. The ruling merely acknowledged that Congress didn’t want federal courts hearing discrimination lawsuits based on a failure to grant deferred action. It didn’t consider or endorse the legality of deferred deportation.

The OLC next claims that Congress has “acquiesced” to deferred deportation. It cites statutes authorizing deferred deportation for battered spouses of U.S. citizens, and instances where individuals entitled to visas—such as victims of human trafficking or college students affected by Hurricane Katrina—needed more time to obtain visas or fulfill the visa’s purpose. Congress’s authorization of deferred deportation for narrow categories doesn’t allow a president to create broad new categories, particularly since his deferred deportation creates entitlement to benefits such as work permits, and because the category of aliens created by President Obama’s policy weren’t entitled to stay.

Fourth, the OLC claims that past presidents have taken similar actions, yet it fundamentally misrepresents their legal basis. The primary example is George H.W. Bush ’s 1990 Family Fairness Policy (FFP), which affected an estimated 1.5 million children and spouses of those granted amnesty by the 1986 Immigration Reform and Control Act.

The FFP, however, was consonant with existing statutes. The FFP granted not deferred deportation, but “voluntary departure” for up to one year. Voluntary departure allows deportable individuals to voluntarily depart the country, on their own dime, in lieu of being forcibly removed. Their status as “deportable” individuals never changes.

The FFP was grounded in the then-existing voluntary-departure statute, which stated, “The Attorney General may, in his discretion, permit any alien under deportation proceedings . . . to depart voluntarily from the United States at his own expense in lieu of deportation.” The FFP didn’t contradict existing law or attempt to recategorize deportable aliens.

Fifth, the OLC ignores that the new Obama policy profoundly harms the states, which bear the costs of educating and providing health care to millions of illegal immigrants now allowed to remain. The policy also injures state sovereignty.

In Arizona v. U.S., the Supreme Court ruled in 2012 that federal immigration law pre-empts much of state power over immigration. But when a president unilaterally acts, it deprives states of their police power and representation in Congress, imposing changes without democratic deliberation. While federal immigration law can pre-empt state power, there can be no pre-emption when a president exceeds his constitutional authority by rewriting the law.

The OLC’s memo endorses a view of presidential power that has never been advanced by even the boldest presidential advocates. If this view holds, future presidents can unilaterally gut tax, environmental, labor or securities laws by enforcing only those portions with which they agree. This is a dangerous precedent that cannot be allowed to stand.

Source: http://online.wsj.com/articles/david-rivkin-and-elizabeth-price-foley-obamas-immigration-enablers-1416872973

Mr. Rivkin is a constitutional litigator and served in the Justice Department and White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Ms. Foley is a constitutional law professor at the Florida International University College of Law.

Can Obama’s imperial power grabs be stopped? Rivkin tells Lou Dobbs

Constitutional Attorney David Rivkin to debunk the president’s latest controversial move on immigration on Fox Business Network

Published on 9 January 2012

by Brent Baldwin

(OfficialWire)

WASHINGTON, D.C. (USA)
OfficialWire PR News Bureau

David Rivkin, the lawyer who designed and argued the successful multi-state challenge to ObamaCare, is turning his guns on the latest and possibly the most egregious unconstitutional power grab by the Obama administration. Watch Rivkin in action on Lou Dobbs.

David Rivkin will be interviewed on Lou Dobbs Tonight on the Fox Business Network Friday, January 13 (7 to 8 p.m. EST) regarding a recent article he co-authored for The Washington Postabout President Barack Obama’s claims that he can preempt state law whenever immigration policy “might irritate a foreign government.”

The case stems from the Arizona immigration policy of penalizing illegal immigrants, and, according to Rivkin, it boils down to an unprecedented expansion of presidential power, among others.

“This is a stunning and audacious power grab, far more expansive than the legal theories that prompted critics of President George W. Bush to argue that he established an ‘imperial presidency.’ It simply cannot be that, despite all the Constitution’s limitations on federal power and executive action, the president’s powers become absolute whenever another nation complains.”

The Supreme Court has granted swift review of this issue, and Rivkin will explain on tonight’s show what he believes about the repudiation of Obama’s latest power grab will be quickly forthcoming.

Source: http://www.officialwire.com/main.php?action=posted_news&rid=311146