President Obama's 2014 executive order that expanded deferred action programs for certain immigrants raises constitutional issues regarding the separation of powers between the executive and legislative branches. In response, 17 states sued the federal government, arguing that the president exceeded his authority. However, the order formalized an existing practice and prioritized deportations, which is within the president's enforcement discretion. While the order allows work authorization, the executive has authority to grant work permits. Ultimately, the issue involves political balancing between the branches, and the courts are reluctant to intervene in such political matters that are inherently within the legislative and executive powers.
How Far Can The President Go To Overhaul The U.S. Immigration System Without The Blessing of Congress?
President Obama reiterated his commitment to immigration reform and reproached the House Republicans for their unwillingness to confront this important issue. Potentially, the combination of four factors ─ Pressure from the immigration advocates that the President has done little on the immigration issue; Speaker John Boehner’s statement that the House would not vote on immigration legislation this year; the surge of children crossing the southern border (mostly from Mexico and Central American countries of El Salvador, Guatemala, and Honduras); and strategic positioning for the upcoming midterm elections ─ have all led to this recent announcement.
“With this volume we celebrate 30 years of publishing critical and diverse perspectives on public policy and its impact on our communities. Given the significance of the upcoming elections, our Editorial Board worked tirelessly to include timely and innovative works that spark conversation and debate about ways to improve the social, economic, and political condition of Latinas and Latinos in the U.S.”
How Far Can The President Go To Overhaul The U.S. Immigration System Without The Blessing of Congress?
President Obama reiterated his commitment to immigration reform and reproached the House Republicans for their unwillingness to confront this important issue. Potentially, the combination of four factors ─ Pressure from the immigration advocates that the President has done little on the immigration issue; Speaker John Boehner’s statement that the House would not vote on immigration legislation this year; the surge of children crossing the southern border (mostly from Mexico and Central American countries of El Salvador, Guatemala, and Honduras); and strategic positioning for the upcoming midterm elections ─ have all led to this recent announcement.
“With this volume we celebrate 30 years of publishing critical and diverse perspectives on public policy and its impact on our communities. Given the significance of the upcoming elections, our Editorial Board worked tirelessly to include timely and innovative works that spark conversation and debate about ways to improve the social, economic, and political condition of Latinas and Latinos in the U.S.”
Legal Issues of Government Use of Social MediaDavid Menken
This presentation explores the legal issues relevant to government use of social media, most particularly first amendment and open meetings/document retention matters. It was given at the New York State Cyber Security Conference in Albany NY on June 2, 2015.
On November 20th, President Obama announced a plan for the Immigration Accountability Executive Action 2014, which is also known as the "Immigration Accountability Executive Action". In addition to the announcement, there were eighteen (18) documents released by the White House and the Department of Homeland Security (DHS) that elaborated on the President's Plan. Many facets of the President's Plan may be of great assistance to members in many immigrant communities in the U.S.
The President announced the creation of a new program called "Deferred Action for Parental Accountability" (DAPA). This program will permit Parents of U.S. Citizens and Lawful Permanent Residents (as of November 20th, 2014) to be eligible to apply for "deferred action" (avoiding removal) if they have been present in the U.S. since January 1st, 2010 and if they have five (5) years of "continuous presence".
In addition, another extension of deferred action was announced. It is the expansion of the Deferred Action for Childhood Arrivals (DACA) Program. The age limit for DACA has been removed and the date of residence has been moved-up to 2010. It is anticipated that this will allow 300,000 additional persons to apply for deferred action. Like DAPA, DACA work permits will be granted for three (3) years.
Another way that members of many immigrant communities will benefit from the President's Plan concerns changes to Provisional Waivers. USCIS will issue new regulations and policies regarding I-601A waivers. In January 2013, DHS published a regulation allowing some people to file I-601A waivers of the three and ten year overstay/unlawful status bars before leaving the U.S. and potentially facing the bar.
Another way that President Obama's announcement will benefit many immigrant communities will be a liberalization of the use of the National Interest Waiver (NIW) category for the Green Card. The President stated that the NIW was "underutilized" and ordered USCIS to clarify the standard by which a national interest waiver can be granted. The change is primarily targeted at making it easier for businesspeople and entrepreneurs to qualify.
Additionally, "parole-in-place" is being expanded for certain entrepreneurs. USCIS will grant parole status, on a case-by-case basis, to inventors, researchers, and founders of start-up enterprises who may not yet qualify for a national interest waiver but who have been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research.
In addition to the foregoing, the President requested the USCIS to issue clarification of the definition of "specialized knowledge" for the L-1B intracompany transfer nonimmigrant visa petitions. Also, there is a proposal to accelerate the time when an employee may be "portable" under AC-21.
The Administrative Relief that has been proposed by the President is l
National Defense Authorization Act 2012 Article Assignment Nullification by S...Wayne Williams
Article Assignment; Students will read the article on nullification and how South Carolina is pushing back against the NDAA 2012 using the 10th Amendment.
10/28/19 Michael Miller-EL Pretrial Hearing & International Tribunal OptionVogelDenise
17 USC § 107 Limitations on Exclusive Rights – FAIR USE
11/04/19 “FIRST” PRETRIAL HEARING - DEMAND FOR FREEDOM OF “HOSTAGE” MICHAEL ANTHONY MILLER-EL – A/K/A BY THE UNITED STATES OF AMERICA/UNITED STATES’ DESPOTISM GOVERNMENT EMPIRE AS MICHAEL ANTHONY MILLER
CUYAHOGA COUNTY COURT OF COMMON PLEAS (OHIO) – CRIMINAL CASE NO. 641058
DRAFT: STATUTE OF THE INTERNATIONAL TRIBUNAL FOR THE PROSECUTION OF PERSONS RESPONSIBLE FOR SERIOUS VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW COMMITTED IN THE TERRITORY OF THE UNITED STATES OF AMERICA SINCE 1921____
INTERNATIONAL CRIMINAL COURT REFERENCE:
OTP-CR-367/18
To understand the significance of the Computer Fraud and Abuse Act, we must consider its history, the use, scope, and function of the Internet at the time of the Act’s inception, and the recurring nature which Congress amended the Act in order to keep up with the advancements of computer and computer-based communications.
We must also consider the evolution of precedence over the course of its history with respect to charges under the Act.
Further, we must address the root cause of the contentious nature of this Act as written, and look to other industry models which can assist in amending the Act according to contemporary use of computers, and the modern Internet.
Legal Issues of Government Use of Social MediaDavid Menken
This presentation explores the legal issues relevant to government use of social media, most particularly first amendment and open meetings/document retention matters. It was given at the New York State Cyber Security Conference in Albany NY on June 2, 2015.
On November 20th, President Obama announced a plan for the Immigration Accountability Executive Action 2014, which is also known as the "Immigration Accountability Executive Action". In addition to the announcement, there were eighteen (18) documents released by the White House and the Department of Homeland Security (DHS) that elaborated on the President's Plan. Many facets of the President's Plan may be of great assistance to members in many immigrant communities in the U.S.
The President announced the creation of a new program called "Deferred Action for Parental Accountability" (DAPA). This program will permit Parents of U.S. Citizens and Lawful Permanent Residents (as of November 20th, 2014) to be eligible to apply for "deferred action" (avoiding removal) if they have been present in the U.S. since January 1st, 2010 and if they have five (5) years of "continuous presence".
In addition, another extension of deferred action was announced. It is the expansion of the Deferred Action for Childhood Arrivals (DACA) Program. The age limit for DACA has been removed and the date of residence has been moved-up to 2010. It is anticipated that this will allow 300,000 additional persons to apply for deferred action. Like DAPA, DACA work permits will be granted for three (3) years.
Another way that members of many immigrant communities will benefit from the President's Plan concerns changes to Provisional Waivers. USCIS will issue new regulations and policies regarding I-601A waivers. In January 2013, DHS published a regulation allowing some people to file I-601A waivers of the three and ten year overstay/unlawful status bars before leaving the U.S. and potentially facing the bar.
Another way that President Obama's announcement will benefit many immigrant communities will be a liberalization of the use of the National Interest Waiver (NIW) category for the Green Card. The President stated that the NIW was "underutilized" and ordered USCIS to clarify the standard by which a national interest waiver can be granted. The change is primarily targeted at making it easier for businesspeople and entrepreneurs to qualify.
Additionally, "parole-in-place" is being expanded for certain entrepreneurs. USCIS will grant parole status, on a case-by-case basis, to inventors, researchers, and founders of start-up enterprises who may not yet qualify for a national interest waiver but who have been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research.
In addition to the foregoing, the President requested the USCIS to issue clarification of the definition of "specialized knowledge" for the L-1B intracompany transfer nonimmigrant visa petitions. Also, there is a proposal to accelerate the time when an employee may be "portable" under AC-21.
The Administrative Relief that has been proposed by the President is l
National Defense Authorization Act 2012 Article Assignment Nullification by S...Wayne Williams
Article Assignment; Students will read the article on nullification and how South Carolina is pushing back against the NDAA 2012 using the 10th Amendment.
10/28/19 Michael Miller-EL Pretrial Hearing & International Tribunal OptionVogelDenise
17 USC § 107 Limitations on Exclusive Rights – FAIR USE
11/04/19 “FIRST” PRETRIAL HEARING - DEMAND FOR FREEDOM OF “HOSTAGE” MICHAEL ANTHONY MILLER-EL – A/K/A BY THE UNITED STATES OF AMERICA/UNITED STATES’ DESPOTISM GOVERNMENT EMPIRE AS MICHAEL ANTHONY MILLER
CUYAHOGA COUNTY COURT OF COMMON PLEAS (OHIO) – CRIMINAL CASE NO. 641058
DRAFT: STATUTE OF THE INTERNATIONAL TRIBUNAL FOR THE PROSECUTION OF PERSONS RESPONSIBLE FOR SERIOUS VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW COMMITTED IN THE TERRITORY OF THE UNITED STATES OF AMERICA SINCE 1921____
INTERNATIONAL CRIMINAL COURT REFERENCE:
OTP-CR-367/18
To understand the significance of the Computer Fraud and Abuse Act, we must consider its history, the use, scope, and function of the Internet at the time of the Act’s inception, and the recurring nature which Congress amended the Act in order to keep up with the advancements of computer and computer-based communications.
We must also consider the evolution of precedence over the course of its history with respect to charges under the Act.
Further, we must address the root cause of the contentious nature of this Act as written, and look to other industry models which can assist in amending the Act according to contemporary use of computers, and the modern Internet.
Essay 4 ArgumentBackgroundIn 2014, President Barack Obama .docxSALU18
Essay 4: Argument
Background:
In 2014, President Barack Obama signed 12 executive orders directing various agencies in the departments of State, Justice, and Homeland Security to refrain from deporting some 4 million adult immigrants illegally present in the United States if they are the parents of children born here or legally present here, and if they hold a job, obtain a high-school diploma or its equivalent, pay taxes, and stay out of prison. However, for the president Congress had rejected the conditions he established for avoiding deportation. In response to the executive orders, 26 states and the House of Representatives sued the president and the recipients of the orders, seeking to prevent them from being enforced. The States and the House argued that the president effectively rewrote the immigration laws and changed the standards for the deportation of unlawfully present adult immigrants.
The states also argued that because federal law requires them to offer the same safety net of social services for those illegally present as they do for those lawfully present, the financial burden that the enforcement of those orders would put upon them would be far beyond their budgetary limits. Moreover, they argued, enforcement of the president’s orders would effectively constitute a presidential command to the states to spend their own tax dollars against their wishes, and the president lacks the power to do that. In reply, the president argued that the literal enforcement of the law creates an impossible conundrum for him. He does not want to deport the parents of American children, as that destroys families and impairs the welfare of children, and he cannot deport children who were born here, as they are American citizens. The case was filed in Texas, where a federal district court judge agreed with the states and signed an order that prohibited the feds from enforcing the president’s orders, pending a full trial. The feds appealed.
The U.S. Court of Appeals for the 5th Circuit in New Orleans upheld the injunction against the president. In so doing, it agreed with the states that the financial burden on them that would come from the enforcement of these executive orders would be unconstitutional. It also agreed with the House of Representatives that the president exceeded his authority under the Constitution and effectively rewrote the laws. In early April 2016, the Supreme Court heard the feds’ appeal. Because the seat formerly occupied by the late Justice Antonin Scalia for 30 years is still vacant, the court has just eight justices -- for the most part, four conservatives and four liberals. A tie vote in the court, which appears likely in this case, will not set any precedent, but it will retain the injunction against the president.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, says that the most recent time this happened was 1952, when the court enjoined President Harry Truman from seizing steel mills during ...
Article assignment ndaa 2012 indefinate detention and loss of due process of lawWayne Williams
Students will examine the National Defense Authorization Act of 2012; specifically, Clauses 1021 and 1022 and the loss of citizens rights to due process of law.
Chapter 3 Due Process, Equal Protection, and Civil Rights Those .docxchristinemaritza
Chapter 3 Due Process, Equal Protection, and Civil Rights
Those who deny freedom to others deserve it not for themselves.
Abraham Lincoln
CHAPTER OBJECTIVES
After studying this chapter you should better understand:
· • The standards applied for determining whether a procedure satisfies the constitutional due process requirements
· • The manner in which the restrictions on federal government action in the Bill of Rights have been incorporated into the due process guaranty that applies to state actions
· • The U.S. Supreme Court’s approach to determining whether classifications violate the constitutional equal protection requirements
· • The classifications to which “strict scrutiny” is applied in the equal protection analysis
· • The basic remedies available for civil rights violations
At the heart of the rule of law lie the ideals that everyone should be treated fairly and equally before the law. Toward this end the U.S. Constitution protects individual rights by constraining government. But fairness and equality cannot be reduced to prohibitions. To reach more broadly the Constitution also includes fundamental guaranties. Many important court decisions and legislative acts addressing individual rights have been based on the two most fundamental general guaranties: the Due Process Clause and the Equal Protection Clause.
A Due Process Clause was part of the Fifth Amendment in the original Bill of Rights and it was aimed at the federal government. It provides that no person shall be “deprived of life, liberty, or property, without due process.” The original Bill of Rights did not mention equal protection of the laws in a general sense. The Fourteenth Amendment, added after the Civil War and aimed at former slave states, included the same due process provisions as the Fifth Amendment. The Fourteenth Amendment also included the Equal Protection Clause. It provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” Although nothing in the text said that equal protection applied to the federal government as well as to the states, the U.S. Supreme Court eventually held that it did. In 1954 in Bolling v. Sharpe the Court said that “the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The ‘equal protection of the laws’ is a more explicit safeguard of prohibited unfairness than ‘due process of law,’ and, therefore, we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process.”1 Consequently due process and equal protection apply to both federal and state laws.
The Due Process and Equal Protection Clauses address government action. They require that laws and legal procedures be fair. As discussed in the final section of this chapter, other constitutional provisions or laws may directly address unfair or discriminato ...
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Essay Questions Exam #1 Due Sunday Oct 19th @ 10pm Emmanuel .docxbridgelandying
Essay Questions Exam #1
Due Sunday Oct 19th @ 10pm
Emmanuel
1. What are the differences between domestic law and international law? What are the sources for international law?
Domestic law is enforced by legit government. Codified by a legitimate government. Domestic law is dominated by dominated by culture. No true international law
International law – 1) a nation can consent to be bound by international law (agree to a treaty)
2)a convention (comes out of the UN) UN has to be signed by each country- international contract. 3) also consent by custom & practices.
2. What is "enfranchisement"? Discuss the amendments in the US Constitution that applies to
Enfranchisement- to admit to the privileges of a citizen and especially to the right of suffrage
Amendments
· 15th – blacks
· 19th –deals with women rights
· 23th –Washington D.C. can vote
· 24th – abolish property tax vote
· 26th – Lower voting age to 18 years
David Lopez
3. What is “ethics”? What is “morality”? What are the differences between ethics, morality and the law? Briefly discuss legal obligations, professional obligations and organizational obligations.
As mentioned in chapter 5, at the most basic level, ethics constitutes right or wrong behavior. It is a branch of philosophy focusing on morality and the way moral principles are derived and implemented. Ethics has to do with the fairness, justness, rightness, or wrongness of an action. Morals are influenced by culture or society, however they are principal’s set individually by person to person. Business ethics and business law are closely intertwined because ultimately the law rests on social beliefs about right and wrong behavior in the business world.
4. What is "pleadings"? Discuss the contents of a complaint.
The complaint and answer, taken together, are known as the pleadings.
-The facts showing that the court has subject- matter and personal jurisdiction
-The facts establishing the plaintiff’s basis for relief,
-The remedy the plaintiff is seeking.
5. Discuss at least four reasons why the court will apply equitable remedies. Note:UMIRU
Equitable remedies include specific performance, an injunction, and rescission. Specific performance involves ordering a party to perform an agreement as promised. An injunction is an order to a party to cease engaging in a specific activity or to undo some wrong or injury. Rescission is the cancellation of a contractual obligation.Todays courts will not grant equitable remedies unless the remedy at law (monetary damages )is inadequate.
6. Briefly discuss the major publication, practices and invention that had an influence on the US Constitution.
Ideas from many people and several existing documents, including the Articles of Confederation and Declaration of Independence had major influences on the publication for the constitution.
7. What is evidence law? What criteria must be met for evidence to be admissible.
The law of evidence provides principle ...
Running Head THE PATRIOT ACT OF THE USTHE PATRIOT ACT OF THE .docxtodd521
Running Head: THE PATRIOT ACT OF THE US
THE PATRIOT ACT OF THE US
THE PATRIOT ACT OF THE US
Abstract
This project will research the USA PATRIOT Act including its history and the impact the act has had on the American citizens` rights. The paper will also determine the different provisions found in the Act. After determining the Bill`s wording, this research will look at whether the rights and the constitution of the American citizens are violated by the provisions. This paper will also find out the different reauthorizations performed to the law including changes to the provisions. The advantages and disadvantages of the law are going to be explored and the conclusion will determine the law`s constitutionality and if it is easy to take the government`s powers gained and check if the power has shifted to an extent of not going back now.
Thesis Statement
The PATRIOT Act analysis will tell if the Act was written with genuine interest of the US citizens or it was written with the aim of stripping off our rights that are taken for granted by many individuals.
Body
The USA PATRIOT Act was new legislation that was formed by the Government agencies and the public to respond to the growing fears of an attack that they had during the September 11th, 2001 terrorist attacks. The USA PATRIOT acronym stands for “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism”. The Bill was meant for implementing policies and plans with the aim of preventing a terrorist attack on our country in the near future. The Bill was also intended for the implementation of policies and plans for our citizens and interests throughout the globe (USA PATRIOT Act, 2017). There exist some controversial provisions in the power of conducting seizures and searches with the absence of “probable cause”, the gathering and interception of private communication involving text messages, email and voice call as well as the indefinite detention of terrorists who are suspected. It enabled easy access to an individual`s medical and financial records and fewer restrictions are involved in accessing court documents.
The PATRIOT Act was signed by President George W. Bush on October 26, 2001, and the act was made a necessity for keeping us safe from attacks that may occur in the future. However, there was an emergence of some concerns where some civil liberties were ignored by the Act. The law has been altered time and again since it was enacted.
According to McCarthy (2002), the Act is divided into nine categories namely surveillance, prevention of terrorism by anti-money laundering practices, improved intelligence, domestic security against terrorism, putting away judicial obstacles to investigation, border security, victims of terrorism compensation, establishment of criminal law of terrorism and terrorism classification as criminal offense. The surveillance provision has particularly brought problems regarding rights. Restrict.
Chapter 22 THE LAW AND TALENT MANAGEMENTWayne F. Cascio, HEstelaJeffery653
Chapter 2
2 THE LAW AND TALENT MANAGEMENT
Wayne F. Cascio, Herman Aguinis
Learning Goals
By the end of this chapter, you will be able to do the following:
· 2.1 Describe the framework of the U.S. legal system
· 2.2 Describe alternative legal routes for complaints against an employer’s employment practices
· 2.3 Explain the two major legal theories of unfair employment discrimination
· 2.4 Understand the major legal principles that define key civil rights laws
· 2.5 Identify the six exemptions to Title VII coverage
· 2.6 Define sexual harassment and identify preventive steps employers should take
· 2.7 Know when you can and cannot justify “English-only” rules in the workplace
· 2.8 Understand how to prevent age-discrimination claims when downsizing or terminating workers for cause
Comprehensive employment-related legislation, combined with increased motivation on the part of individuals to rectify unfair employment practices, makes the legal aspects of employment among the most dominant issues in human resource management today. All three branches of the federal government have been actively involved in ongoing efforts to guarantee equal employment opportunity (EEO) as a fundamental individual right, regardless of race, color, age, gender, religion, national origin, or disability.
All aspects of the employment relationship, including initial screening, recruitment, selection, placement, compensation, training, promotion, and performance management, have been addressed by legislative and executive pronouncements and by legal interpretations from the courts. With growing regularity, I/O psychologists and HR professionals are being called on to work with attorneys, the courts, and federal regulatory agencies. It is imperative, therefore, to understand thoroughly the rights as well as obligations of individuals and employers under the law and to ensure that these are translated into everyday practice in accordance with legal guidelines promulgated by federal regulatory agencies. Affirmative action involves a proactive examination of whether equality of opportunity exists. If it does not, a plan is implemented for taking concrete measures to eliminate the barriers and to establish true equality (Society for Human Resource Management, 2016b). Affirmative action has become a fact of modern organizational life. To ignore it is to risk serious economic, human, and social costs.
Every public opinion poll based on representative national samples drawn between 1950 and the present shows that a majority of Americans—black, brown, and white—support EEO and reject differential treatment based on race, regardless of its alleged purposes or results. There is agreement about the ends to be achieved, but there is disagreement about the means to be used (Von Drehle, 2003). EEO has been, and is still, an emotionally charged issue. Congress has provided sound legal bases for effecting changes in EEO through sweeping civil rights legislation. Subsequently, thousan ...
Similar to MLW Column __ 011215 __ Obama Exec Order Immigration (10)
Chapter 22 THE LAW AND TALENT MANAGEMENTWayne F. Cascio, H
MLW Column __ 011215 __ Obama Exec Order Immigration
1. Immigration order a textbook case about separation of powers
By: Joseph S. Berman January 8, 2015
Regardless of one’s political affiliation or views on immigration,
President Obama’s Nov. 20th executive order, which defers
deportation of approximately 4 million immigrants, raises
interesting constitutional issues.
When he was inaugurated for his second term, the president took
an oath to “faithfully execute” the law. The oath derives from
Article II, §3, cl. 5 of the Constitution, which calls on the president
to “take Care [sic] that the Laws [sic] be faithfully executed … .”
In reaction to the executive order, 17 states have sued the federal government, alleging that the president has
violated his constitutional duty under the “Take Care” clause by “unilaterally suspending” enforcement of
immigration statutes. In response, the president has argued that his order is nothing more than an ordinary exercise
of prosecutorial discretion.
As with many complex legal questions, the truth probably lies in the middle. The debate concerns the separation of
powers between the executive and legislative branches. And, by invoking the jurisdiction of the federal court, the
plaintiff states have brought the third branch of government into the dispute.
The “law” in question is, in reality, a compendium of federal statutes and regulations. Beginning with the
Immigration and Naturalization Act of 1952, or INA, Congress authorized the executive branch to remove “aliens”
from the United States.
Removable aliens include those who were inadmissible at time of entry, have been convicted of certain crimes, or
meet other criteria set by federal law. Arizona v. United States, 132 S.Ct. 2492, 2499 (2012).
Even before the INA passed Congress, courts recognized that immigration “is a field where flexibility and the
adaptation of congressional policy to infinitely variable conditions constitute the essence of the program.” United
States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950).
Discretion is a key feature of the removal system. Arizona, 132 S.Ct. at 2499. As the Supreme Court recognized,
“federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all.” Id.
According to recent studies, approximately 11 million people reside in the United States without proper
documentation. Yet, the government deports only about 400,000 immigrants annually. Starting in 1975, the
Immigration and Naturalization Service formally instituted a program of “deferred action,” by which the executive
(formerly the Department of Justice, now the Department of Homeland Security), may defer removal of an
immigrant for a period of time.
According to DHS, “deferred action is a form of prosecutorial discretion by which the Secretary deprioritizes an
individual’s case for humanitarian reasons, administrative convenience, or in the interest of the Department’s overall
enforcement mission.”
In the 1980s, the Reagan and Bush administrations granted a form of administrative relief known as “indefinite
voluntary departure,” to defer the deportations of approximately 1.5 million undocumented spouses and minor
children who did not qualify for legalization under the 1986 immigration law.
Most recently, in 2012 after Congress failed to pass the DREAM Act, the Obama administration deferred deportation
of immigrants who came to the United States as children. The program is known as DACA, for Deferred Action for
Childhood Arrivals.
Page 1 of 4Immigration order a textbook case about separation of powers | Massachusetts Lawyers ...
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2. President Obama’s November 2014 executive order extends DACA to parents of citizens and lawful permanent
residents and who meet certain criteria (albeit not to parents of children whose only right to remain comes from
DACA).
Applicants must have lived in the United States since at least Jan. 1, 2010. They must file a formal request for
deferred action and undergo a background check. In addition to deferred deportation, successful applicants also will
receive a work authorization and tolling of the time that they are in the United States unlawfully.
The policy prioritizes the removal of certain aliens, such as those convicted of major felonies or who pose a threat to
national security. The programs do not “legalize” any immigrants who are unlawfully present in the United States or
confer lawful immigration status.
The states sued on Dec. 3, 2014, seeking injunctive relief against the order. They contend that the president has
violated his oath by announcing that he will not enforce the immigration laws as they apply to certain immigrants.
They argue that deferred action is not simply a decision to not prosecute a particular person, but represents a
decision to openly tolerate a class of persons in the United States whose presence violates the law.
The plaintiffs also argue that the executive order goes beyond a simple decision to not prosecute, since it also will
allow the affected aliens to obtain work authorizations. By doing so, the executive branch has intruded into an area
— making law — that the Constitution reserves for the Legislature.
Using the president’s own words against him, the complaint quotes Obama as saying in the past, “I’m not a king. I
am the head of the executive branch of government. I’m required to follow the law. … [w]e have certain obligations
to enforce the laws that are in place … . [W]e’ve kind of stretched our administrative flexibility as much as we can.
…. Congress has said, ‘here is the law’ when it comes to those who are undocumented, and they’ve allocated a
whole bunch of money for enforcement. … What we can do is then carve out the DREAM Act, saying young people
who have basically grown up here are Americans that we should welcome. But if we start broadening that, then
essentially I would be ignoring the law in a way that I think would be very difficult to defend legally. So, that’s not
an option.”
The president’s tone changed after Nov. 20. After signing the order and in response to protesters urging more
action on immigration, he said, “I just took an action to change the law.” That comment would seem to go against
his protestations of limited authority before he signed the executive order.
In part based on those comments, a federal judge in the Western District of Pennsylvania on Dec. 17 held that the
action violated the separation of powers.
The suit by the 17 states alleges that by “refusing to enforce the law on the books,” the president has ignored or
rewritten the law and violated his oath and the “Take Care” clause of the Constitution. The executive order will
“openly tolerate an undocumented alien’s continued presence in the United States,” with huge costs to the states,
which have to provide education, health care and other benefits to the approximately 40 percent of undocumented
immigrants who potentially could benefit from the president’s decision.
The states also contend that the order will encourage illegal activity, by increasing the number of people who seek
to enter the country without documents.
The Supreme Court has set general parameters for defining the limits of the president’s authority. In Heckler v.
Chaney, 470 U.S. 821, 831 (1985), the court listed four factors to determine whether the executive’s action is a
proper exercise of his duty to faithfully execute laws passed by Congress.
The factors include whether agency resources are best spent in chasing alleged violators, whether the agency is
likely to succeed, whether the particular enforcement action best fits the agency’s overall policies, and whether the
agency has sufficient resources to undertake the action at all. Id.
In the absence of specific legislative direction, an agency’s non-enforcement decision is much like a prosecutor’s
decision not to indict. Id. at 832-833.
The executive may not, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws
to match its policy preferences. Id. at 833. While, “the power of executing the laws necessarily includes both
authority and responsibility to resolve some questions left open by Congress that arise during the law’s
Page 2 of 4Immigration order a textbook case about separation of powers | Massachusetts Lawyers ...
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3. administration[,] … it does not include a power to revise clear statutory terms that turn out not to work in practice.”
Utility Air Regulatory Group v. EPA, 134 S.Ct. 2427, 2446 (2014).
Although the enforcement of every statute involves prosecutorial discretion, such discretion typically is exercised on
a case-by-case basis, not reliance on general criteria that create a presumption of non-enforceability.
Despite the blanket nature of the executive order, President Obama’s Nov. 20 executive order likely will — and
should — survive the states’ court challenge. The president has wide latitude to enforce the laws. His order
formalizes an unwritten practice of prioritizing certain classes of immigrants for removal. Given budgetary
constraints, only a fraction of those in the country without proper documents are deported each year.
The decision to prioritize certain deportations and deferring others rests within the expertise of the agencies that
have to enforce the law, which satisfies an important factor under Heckler. The action is temporary. The order
emphasizes deportation of high-risk immigrants such as felons and national security threats. Immigration officials
retain discretion to screen undocumented immigrants on a case-by-case basis.
The action is not without precedent. For example, the Immigration and Naturalization Service has instituted deferred
action programs for victims of human trafficking and their family members, battered women under the Violence
against Women Act, and foreign students who were displaced by Hurricane Katrina and therefore could not continue
their studies.
Heretofore, Congress has not tried to limit the practice. Although the House of Representatives voted to bar funding
for DACA, the bill failed to pass the Senate.
Perhaps the most problematic aspect of President Obama’s executive order is that it allows immigrants to obtain
work permits. The plaintiff states make a big deal of that, arguing that the work authorizations go beyond a mere
decision to not prosecute; they allow 4 million people without papers to compete for jobs.
However, the INA explicitly gives the executive the authority to grant work permits to particular classes of aliens,
even those who are in active removal proceedings. Nothing in the statutes circumscribes the ability of the executive
branch to provide work authorizations, even if attached to an action concerning deportation.
Fundamentally, this is an issue of political balance. Has the president flouted the intent of Congress? Obviously not.
Civil enforcement of immigration laws is random and arbitrary. Congress has given the executive branch funds to
remove only a small percentage of immigrants who lack required documents.
President Obama’s order, which continues an inherent and historical part of the immigration laws, recognizes the
reality that most of those protected would not be removed in any event. Congress has not expressed a clear policy
of separating unlawful immigrants from their citizen children. Indeed, the opposite is true, since Congress in the
past has permitted citizens to petition for deferred removal for family members. The program will promote the
humanitarian goal of family unity.
By invoking the jurisdiction of the federal court, the states have further complicated the issue. It is rare for the
courts to come between the legislative and executive branches. Cf., Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 579 (1952) (invaliding President Truman’s takeover of steel mills as outside his authority as executive);
Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803). These cases are the exception that proves the rule.
The immigration debate is inherently political. There are political remedies, such as passing legislation or
appropriating more funds for enforcement of the immigration laws. Given the different — and emotional — political
lenses through which each side views the immigration debate, it would be dangerous for a court to intervene.
Joseph S. Berman practices at Looney & Grossman in Boston. His law clerk, Kyle Siconolfi, a student at Northeastern
University School of Law, assisted him with the article.
Issue: JAN. 12 2015 ISSUEJAN. 12 2015 ISSUE
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