Thursday, December 10, 2015
Abstract: To many scholars, paradoxically, practical immigration law has little to do with actual immigration law. Professor Hiroshi Motomura, a leading immigration law professor, admits quite candidly that the “traditional distinction between Congress’s authority to make law and the President’s authority to enforce law — always a very imprecise line to begin with — has little practical meaning” for immigration enforcement. It is no coincidence that Motomura’s magisterial tome is titled Immigration Outside — not inside — The Law. In this contribution to a symposium on Prof. Motomura’s Foulston Siefkin lecture, I contrast the disconnect between the professoriate’s view on immigration law and that of the Obama Administration. Specifically, I chronicle how the Office of Legal Counsel grounded the legality of Deferred Action for Parents of Americans (“DAPA”) in congressional acquiescence, rather than an unbounded notion of executive power. While I ultimately conclude that OLC’s defense of DAPA fails, at a minimum, its recognition of Congress’s persistent, if not quiet role in cabining executive discretion serves as a powerful refutation of the scholarly consensus of immigration outside the law.