Balkinization Symposium on Immigration and Enforcement DiscretionMichael Ramsey

December 09, 2014

Balkinization last week had this impressive symposium on immigration and the President's enforcement discretion. Among the prominent commentators, of special note is Zachary Price: Two Cheers for the OLC Opinion (and again, here is his full-length scholarly article on the subject which has some important originalist arguments).

Without trying to be comprehensive, here are a couple of other good posts from varying perspectives –

Jack Goldsmith (Lawfare), The Immigration Imbroglio as (Pretty) Normal Separation of Powers (with this response at Opinio Juris by Gabor Rona [Cardozo law School]).

David Rivkin & Elizabeth Price Foley, Obama’s Immigration Enablers: The administration’s Office of Legal Counsel endorsed a view of executive power never imagined by the Founders.

At National Review, Josh Blackman, Obama's Unconstitutional Corner: His own Justice Department has provided an argument against him.

In their concluding essay on the Balkinization symposium, Adam Cox and Cristina Rodriguez say:

Over the last several days—both on this blog and around the nation—that debate has crystalized around four central questions concerning the legality of the administrative relief laid out by President Obama last Thursday.

(1) To be lawful, must relief be closely tied to statutorily articulated congressional priorities?

(2) Is it permissible for prosecutorial discretion to be exercised “categorically,” or must it proceed on a “case-by-case” basis?

(3) Does the fact that the President’s actions extend a benefit—work authorization—rather than just withhold a sanction affect their legality?

(4) Is the relief simply too big in scope to constitute a lawful exercise of prosecutorial discretion?

For what it's worth, I think these are the right questions, and my originalist-oriented answers — which I may try to defend at some point — are no, no, yes, and no.

Posted at 6:43 AM