WSJ Badly Misreads Legal Justification For Obama's Immigration Order

The Wall Street Journal is misrepresenting the legal justification for President Obama's executive actions on immigration from the Justice Department's Office of Legal Counsel (OLC) -- even falsely claiming that the OLC's opinion does not quote “specific statutory language.”

On November 20, Obama announced that he would take executive action on immigration by prioritizing deportations of dangerous undocumented immigrants over the undocumented parents of U.S. citizens or lawful permanent residents who pass a criminal background check and register for temporary administrative relief. Right-wing media were quick to accuse Obama of lawlessness for this deferred action on deportations and to declare his order "unconstitutional," despite the fact that the overwhelming majority of legal experts agree that the president has the authority to exercise this sort of prosecutorial discretion in service of family unification.

The Wall Street Journal was no exception. Before the president issued his executive order, the Journal claimed in a November 16 editorial that the president didn't have the authority to act on immigration because his administration had not yet received a “written legal justification” from the OLC. According to the editorial, the “President should always seek legal justification for controversial actions to ensure that he is on solid constitutional ground” by asking for the OLC's guidance. The Journal ultimately concluded that "[i]t's possible" the Obama administration hadn't “sought an immigration opinion because they suspect there's little chance that even a pliant Office of Legal Counsel could find a legal justification” -- apparently unaware that Obama had already received legal advice from the OLC, Attorney General Eric Holder, and immigration experts before the Journal published its editorial.

As requested, the OLC published its official opinion on Obama's immigration proposal prior to his announcement on November 20. The opinion determined that the president had the authority to prioritize and defer some deportations over others -- but that apparently wasn't enough to appease the Journal. In a November 24 editorial, the Journal criticized the OLC's opinion: “Now that we've studied the legal memo his government used to support his order, his abuse of power looks even worse.” But the editorial incorrectly claimed the opinion allowed the president to “rewrite” the law by “exempting whole categories of people and extending federal benefits that they aren't entitled to by statute.” Worse, the Journal falsely claimed the memo omitted information that it actually included. From the November 24 editorial:

The problem, as the Justice Department's Office of Legal Counsel (OLC) concedes in the 33-page document, is that “the Executive cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite laws to match its policy preferences” or apply “set formulas or bright-line rules.” Yet Mr. Obama is making precisely such a rewrite, by exempting whole categories of people and extending federal benefits that they aren't entitled to by statute.

By recognizing that there is no categorical exemption, the OLC is implicitly admitting that Mr. Obama is stretching prosecutorial discretion beyond legal norms.

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These are the kind of errors that normally scrupulous lawyers make under deadlines or political pressure. The OLC memo reveals that the White House did not submit formal legal questions until Wednesday, Nov. 19, and the OLC drafted the opinion the same day. The details of the new program weren't complete and submitted to the Justice Department until Monday. The OLC published the memo on Thursday, Nov. 20.

We wouldn't be surprised if some West Wing minion read our editorial [from November 16] “The Missing Immigration Memo,” panicked, and rushed one out. Mr. Obama's political calculation --in keeping with his lawlessness on health care, drug policy and the rest -- seems to be that he'll dispense with laws or parts of laws that displease him and dare Congress to challenge him. Republicans can and should take the dare.

The editorial ignores the fact that the president's executive order and the OLC memo were widely reported as the culmination of almost a year's worth of careful planning. According to a report from Politico, Obama worked with Homeland Security Secretary Jeh Johnson, Holder, White House lawyers and other Cabinet officials on a “secret 9-month project to remake America's broken immigration system.” Politico reported that "[b]y the time Obama went before the American people to unveil his plan," the Obama administration had “held dozens of meetings with outside legal experts, lawmakers and interest groups” and “exchanged dozens of drafts” regarding the executive order's legality.

The Journal's claim that the president “is stretching prosecutorial discretion beyond legal norms” also ignores the facts. Every president since Dwight Eisenhower has taken executive action on immigration, including Ronald Reagan and George H.W. Bush. The total number of people who may benefit from Obama's order may exceed those who were affected by past administrations' actions, but according to a statement signed by over 100 immigration experts, that doesn't alter its legality:

Some have suggested that the size of the group who may “benefit” from an act of prosecutorial discretion is relevant to its legality. We are unaware of any legal authority for such an assumption. Notably, the Reagan-Bush programs of the late 1980s and early 1990s were based on an initial estimated percentage of the unauthorized population (about 40 percent) that is comparable to the initial estimated percentage for the November 20 executive actions. The President could conceivably decide to cap the number of people who can receive prosecutorial discretion or make the conditions restrictive enough to keep the numbers small, but this would be a policy choice, not a legal issue. For all of these reasons, the President is not “re-writing” the immigration laws, as some of his critics have suggested. He is doing precisely the opposite -- exercising a discretion conferred by the immigration laws and settled general principles of enforcement discretion.

Finally, the Journal makes some false claims about the contents of the memo itself, which makes its condemnation of “the kind of errors that normally scrupulous lawyers make under deadlines or political pressure” particularly ill-advised.

Contrary to the editorial's assertion that “whole categories of people” are exempted, the memo explicitly points out that deferrals remain possible only on a “case-by-case” basis of individual application and are not “categorical.” Likewise, as has been widely reported, the executive action also does not independently confer federal benefits -- the work permits the Journal claims the president created are required to be offered by existing law.

Most glaringly, however, the Journal falsely claims that the memo -- whose entire premise for the legal authority of the executive action is that is grounded in previous statutory law - “gestures toward immigration laws but quotes no specific statutory language.” In fact, the OLC memo repeatedly quotes highly relevant   “specific statutory language” :

The Secretary of Homeland Security is thus now “charged with the administration and enforcement of [the INA] and all other laws relating to the immigration and naturalization of aliens.” 8 U.S.C. § 1103(a)(1).

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Years later, when Congress created the Department of Homeland Security, it expressly charged DHS with responsibility for "[e]stablishing national immigration enforcement policies and priorities." Homeland Security Act of 2002, Pub. L. No. 107-296, § 402(5), 116 Stat. 2135, 2178 (codified at 6 U.S.C. § 202(5)).

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And, as the Court has explained, "[a]t each stage" of the removal process -- “commenc[ing] proceedings, adjudicat[ing] cases, [and] execut[ing] removal orders” -- immigration officials have “discretion to abandon the endeavor.” Am.-Arab Anti-Discrim. Comm., 525 U.S. at 483 (quoting 8 U.S.C. § 1252(g) (alterations in original)).

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The relevant statutory provision treats an alien as “unlawfully present” for purposes of 8 U.S.C. § 1182(a)(9)(B)(i) and (a)(9)(C)(i)(I) if he “is present in the United States after the expiration of the period of stay authorized by the Attorney General.” 8 U.S.C. § 1182(a)(9)(B)(ii).

Photo of President Obama at an event in Minneapolis by Pete Souza, via Flickr/The White House under a U.S. government work license.