Immigration Law

Legomsky on Legality of DAPA, Expanded DACA (Senate Testimony)

"Several members of this committee have publicly expressed concerns about the views of Attorney General nominee Loretta Lynch as to the legality of President Obama’s recently- announced executive actions on immigration. I have studied these issues carefully. While I appreciate that reasonable minds can and do differ about the policy decisions, I take this opportunity to respectfully share my opinion that the President’s actions are well within his legal authority. I note too that this conclusion is overwhelmingly shared by our country’s immigration law professors and scholars. ... Reasonable people of good faith can certainly differ over the precise priorities the President should adopt when enforcing the nation’s immigration laws with finite resources. Like the overwhelming majority of other immigration law professors and scholars, however, I believe that the legal authority for both the Prosecutorial Discretion Memo and the DACA/DAPA Memo is clear. There are Congress’s express assignment of responsibility to the Secretary of Homeland Security for “establishing national immigration enforcement policies and priorities,” in 6 U.S.C. § 202(5); the additional broad authority conferred by 8 U.S.C. § 1103(a); the long-settled recognition, by all three branches of our government, of broad prosecutorial discretion; the multiple provisions in which Congress has specifically recognized deferred action by name; the formal regulations that similarly recognize deferred action by name; the court decisions that do the same; the express grant by Congress of the power to decide who may be eligible for work permits; the formal regulations that have long made deferred action recipients specifically eligible for work permits; the absence of numerical limitations in any of these legal sources of authority; and the fact that the recent policy announcements will not prevent the President from continuing to spend all the immigration enforcement resources Congress gives him. All these sources lead to the same conclusion: The President’s actions are well within his legal authority." - Stephen H. Legomsky, Jan. 29, 2015.