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↓   DACA, DAPA
↓   DACA, DAPA


↓  Federal Power to Regulate Immigration
Federal Power to Regulate Immigration

The Constitution does not directly address the sources
        a) of federal power
                i) to regulate
                        A) which non- U.S. nationals (aliens) may
                                I) enter and
                                II) remain in
                                        (a) the United States, or
                ii) to establish the conditions
                        A) of their continued presence
                                I) within the country.

However,

several of the enumerated powers
        a) of the federal government

1) have been construed
        a) as authorizing such regulation.

The powers
        a) to establish a uniform rule
                i) of naturalization and
        b) regulate commerce

1) are arguably the most commonly cited provisions,
        a) particularly in recent years.16

Various authorities
        a) related to foreign affairs

1) have also been routinely cited
        a) as providing support
                i) for particular
                        A) enactments and
                        B) activities
                                I) in the field of immigration.17

In addition, in some cases,

the Supreme Court has suggested
        a) that federal regulation
                i) of immigration

          is grounded
                i) in the federal government’s “inherent power
                        A) as a sovereign
                        B) to control and
                        C) conduct
                                I) foreign relations.”18





14 See Crane, Amended Complaint, supra note 3. For further discussion of this litigation, see infra notes 119-120 and accompanying text. Two other suits challenging DACA were dismissed because the plaintiffs lacked standing. See Peterson v. President of the United States, No. 1:2012cv00257, Order Granting Motion to Dismiss (D.N.H., Oct. 22,
2012); Dutkiewicz v. Napolitano, No. 8:2012cv01447, Order Granting Motion to Dismiss (M.D. Fla., Nov. 9, 2012).
15 See, e.g., Restrepo v. Holder, 676 F.3d 10 (1st Cir. 2012) (cancellation of removal pursuant to 8 U.S.C. §1229b(a) is solely within the Attorney General’s discretion absent a colorable constitutional claim or a question of law); Bo Cooper, General Counsel, INS, INS Exercise of Prosecutorial Discretion, July 11, 2000, at 4, available at http://niwaplibrary.wcl.american.edu/reference/additional-materials/immigration/enforcement-detention-and-criminal- justice/government-documents/Bo-Cooper-memo%20pros%20discretion7.11.2000.pdf (“The doctrine of prosecutorial discretion applies to enforcement decisions, not benefit decisions. For example, a decision to charge, or not to charge, an alien with a ground of deportability is clearly a prosecutorial enforcement decision. By contrast, the grant of an immigration benefit, such as naturalization or adjustment of status, is a benefit decision that is not a subject for prosecutorial discretion.”).
16 See, e.g., Nat’l Fed’n of Indep. Bus. v. Sebelius,—U.S.—, 132 S. Ct. 2566, 2600 (2012) (describing regulation of immigration as among Congress’s powers under the Commerce Clause); Arizona v. United States,—U.S.—132 S. Ct.
2492, 2498 (2012) (authority to regulate immigration resting, in part, on the power to establish a uniform rule of naturalization); Henderson v. Mayor of New York, 92 U.S. 259 (1876) (striking down New York and Louisiana laws that required shipmasters to pay fees or post bonds to indemnify states if immigrants ended up on public assistance on the grounds that the laws interfered with Congress’s power to regulate interstate commerce); Chy Lung v. Freeman, 92
U.S. 275 (1875) (striking down a California law regulating the entry of “lewd and debauched women” on the grounds that it interfered with Congress’s power to regulate the admission of noncitizens); The Passenger Cases, 48 U.S. 283 (1849) (striking down New York and Massachusetts laws that levied fees on arriving immigrant passengers, in part, on the grounds that such fees constituted unconstitutional regulations of foreign commerce).
17 See, e.g., The Chinese Exclusion Case, 130 U.S. 581, 604 (1889) (listing the powers to “declare war, make treaties, suppress insurrection, repel invasion, regulate foreign commerce, secure republican governments to the States, and admit subjects of other nations to citizenship” as authorizing Congress to enact legislation excluding Chinese laborers); Fong Yue Ting v. United States, 149 U.S. 698, 705-09 (1893) (relying on the same sources to affirm Congress’s power to deport noncitizens). See also Arizona, 132 S. Ct. at 2514 (Scalia, J., dissenting) (citing the Migration or Importation (continued...)




Many,
        a) although not all,
        b) of these powers

1) belong
        a) exclusively
        b) to Congress,19 and
2) courts and commentators have sometimes used language
        a) which implies that         
                i) Congress is preeminent
                        A) in the field of immigration.

For example,

it has frequently been said that
        a) Congress has “plenary power”
                i) over immigration,20 and
        b) that
                i) “over no conceivable subject

                  is the legislative power
                        A) of Congress

                        B) more complete
                                I) than it is over” immigration.21

In some cases,

courts have even suggested that
        a) the executive branch’s authority
                i) over immigration

          arises from a delegation
                i) of congressional power,
        b) as is the case
                i) with other Article I powers,

1) although Article I does not give Congress
        a) clear supremacy
                i) over immigration,
        b) as previously noted.22

In Sale v. Haitian Centers Council, Inc., for example,

the Supreme Court rejected a challenge
        a) which alleged that
                i) the executive branch’s procedures
                        A) for screening Haitian migrants at sea,
                                I) without allowing them
                                        (a) to disembark in the United States,

                  did not comply with
                        A) statutory and
                        B) treaty-based
                                I) protections
                                        (a) that enable aliens
                                                (i) to apply for refugee status and
                                                (ii) avoid repatriation.23

The Court did so, in part,
        a) on the grounds that
                i) “[t]he laws
                        A) that the Coast Guard is engaged in enforcing
                                I) when it takes to the seas
                                        (a) under orders to prevent aliens
                                                (i) from illegally crossing our borders

                   are laws
                        A) whose administration has been assigned
                                I) to the Attorney General
                                II) by Congress.”24

Similarly,

in other cases,

the Court has
        a) described Congress’s power
                i) to exclude aliens
                        A) from the United States, or
                ii) prescribe the terms and conditions
                        B) upon which they may enter,
                        C) as being “enforced
                                I) exclusively
                                II) through executive officers,”25 or
        b) opined that
                i) executive branch officials “exercise[] delegated legislative power”
                        A) in taking specific actions.26


(...continued)
Clause as a source of federal power over immigration). This clause, which pertains directly to slavery, can be seen as addressing federal power to control the entry of certain persons into the United States.
18 Arizona, 132 S. Ct. at 2498; Nishimara Ekiu v. United States, 142 U.S. 651, 659 (1892) (“It is an accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self- preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.”).
19 In particular, the Constitution grants the treaty power to the President. See U.S. Const., art. II, §2 (“[The President]
shall have [the] Power, by and with the Advice and Consent of the Senate to make Treaties ...”).
20 See, e.g., Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 201 (1993) (“Congress ... has plenary power over immigration matters.”); INS v. Chadha, 462 U.S. 919, 940-41 (1983) (“The plenary authority of Congress over aliens under Art. I, §8, cl. 4, is not open to question.”); Boutilier v. INS, 387 U.S. 118, 123 (1967) (“The Court without exception has sustained Congress’ ‘plenary power to make rules for the admission of aliens.’”).
21 Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909). This passage has been quoted in numerous other cases. See, e.g., Reno v. Flores, 507 U.S. 292, 305 (1993); Fiallo v. Bell, 430 U.S. 787, 792 (1977); Kleindienst v. Mandel, 408 U.S. 753, 766 (1972); Hana v. Gonzales, 503 F.3d 39, 43 (1st Cir. 2007).
22 Some commentators have suggested that the language in these cases may have been partially motivated by a desire to enforce a more robust conception of the nondelegation doctrine. See, e.g., Adam B. Cox and Cristina M. Rodriguez,
The President and Immigration Law, 119 YALE L.J. 458, 474 n.46 (2009).
23 509 U.S. 155 (1993).
24 Id. at 201.
25 Lem Moon Sing v. United States, 158 U.S. 538, 547 (1895) (finding that the Act of 1894, which declared that the decisions of the appropriate immigration or custom officers regarding the right of aliens to enter this country are generally final, took away the court’s authority to review such decisions). See also Galvan v. Press, 347 U.S. 522, 531 (1954) (“In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process. But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly embedded in the legislative and judicial tissue of our body politic as any aspect of our government.”).
26 Mahler v. Eby, 264 U.S. 32, 43-45 (1924) (finding that certain deportation orders issued by the Secretary of Labor were void because the orders did not indicate that the Secretary had made certain findings required by statute). See also Kleindienst, 408 U.S. at 769 (“[W]e think the Attorney General validly exercised the plenary power that Congress (continued...)



Few
        a) courts or
        b) commentators

1) have, however, directly addressed the separation of powers
        a) between
                i) Congress and
                ii) the President
        b) in the field of immigration,27 and
2) in some cases,
        a) the Court has also suggested that
                i) the executive branch shares plenary power
                        A) over immigration
                        B) with Congress
                        C) as one of the “political branches.”28

While some such cases could potentially be construed
        a) as referring to powers
                i) delegated to the executive branch
                        A) by Congress,

1) in other cases,
        a) the President has been expressly said
                i) to have inherent authority
                        A) over at least some immigration-related matters.

For example,

in United States ex rel. Knauff v. Shaughnessy,

1) the Court upheld the executive branch’s decision
        a) to exclude a German “war bride,”
                i) in part, on the grounds that

        The exclusion of aliens is a fundamental act of sovereignty.

        The right
                i) to do so

        1) stems not alone from legislative power
        2) but is inherent
                i) in the executive power
                        A) to control the foreign affairs of the nation....

        When Congress prescribes a procedure
                i) concerning the admissibility of aliens,

        1) it is not dealing alone with a legislative power.

        It is implementing an inherent executive power.29

Similarly,

in Hampton v. Mow Sung Wong,

the Court indicated that
        a) certain rules
                i) adopted by the U.S. Civil Service Commission
                ii) barring resident aliens
                        A) from employment
                                I) in the federal civil service

          impermissibly deprived these aliens
                i) of due process of law,
        b) but that
                i) such rules would be permissible
                ii) if they “were expressly mandated
                        A) by
                                I) the Congress or
                                II) the President.”30


Here,

Congress had delegated authority
        a) to the President
        b) to prescribe regulations
                i) for the admission
                        A) of individuals
                        B) to the civil service.

Accordingly,

it is possible that
        a) when the Hampton Court referred to the President’s power
                i) to limit alien eligibility
                        A) for federal employment,
        b) it intended to refer only to the power
                i) which had been conferred to him
                        A) by Congress.

On the other hand,

the Court’s discussion
        a) of the interests
                i) of the President
                ii) that might be sufficient
                        A) to justify the exclusion of noncitizens
                                I) from the civil service

1) focused upon the President’s power
        a) to negotiate treaties,
        b) suggesting recognition
                i) of some independent constitutional basis
                        A) for executive branch activity
                                I) in the field of immigration.31




(...continued)
delegated to the Executive by [certain provisions of the INA].”); Ng Fung Ho v. White, 259 U.S. 276, 280 (1922) (“Congress has power to order at any time the deportation of aliens whose presence in the country it deems hurtful; and may do so by appropriate executive proceedings.”); The Japanese Immigrant Case, 189 U.S. 86, 98 (1903) (“As to [aliens outside the United States], the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.”); Nishimura Ekiu, 142 U.S. at 659 (“The supervision of the admission of aliens into the United States may be entrusted by Congress either to the Department of State, having the general management of foreign relations, or to the Department of the Treasury, charged with the enforcement of the laws regulating foreign commerce; and Congress has often passed acts forbidding the immigration of particular classes of foreigners, and has committed the execution of these acts to the Secretary of the Treasury, to collectors of customs and to inspectors acting under their authority.”).
27 Cf. The President and Immigration Law, supra note 22, at 510 (“[M]odern courts and commentators have largely ignored the question of power allocation between the President and Congress.”); The Obama Administration, the DREAM Act, and the Take Care Clause, supra note 3, at 3 (noting that the Constitution does not explicitly allocate authority over immigration among the political branches). Only in the case of INS v. Chadha did the Supreme Court confront a separation of powers question touching upon immigration. 462 U.S. 919 (1983). At issue in Chadha was the permissibility of a statutory provision which authorized either house of Congress, by resolution, to invalidate the executive branch’s determination to suspend deportation and adjust the status of aliens whose deportation would result in “extreme hardship” to the alien or the alien’s family. The Court struck the statute down on separation of powers grounds, finding that it violated the constitutional requirement that legislative acts be passed by both houses of Congress and presented for the President’s approval. In reaching this conclusion, the Court noted both Congress’s “plenary authority” over aliens, and that the “Attorney General acts in his presumptively Article II capacity when he administers the [INA].” Id. at 940, 953 n.16. It is unclear, however, whether the reference to the Attorney General’s “Article II capacity” means prosecutorial discretion under the Take Care Clause, or some other authority of the executive.
28 See, e.g., United States v. Valenzuela-Bernal, 458 U.S. 858, 864 (1982) (“The power to regulate immigration—an attribute of sovereignty essential to the preservation of any nation—has been entrusted by the Constitution to the political branches of the Federal Government.”); Mathews v. Diaz, 426 U.S. 67, 81 (1976) (“[T]he relationship between the U.S. and our alien visitors has been committed to the political branches of the federal government. Since decisions
in these matters may implicate our relations with foreign powers ... such decisions are frequently of a character more appropriate to either the Legislature or the Executive branches than to the Judiciary.”); The Chinese Exclusion Case,
130 U.S. 581, 607-09 (1889) (rejecting the alien’s assertion that the federal government lacked the power to regulate
immigration, in part, because the “political department” of the United States had the responsibility for determining
“who shall compose [society’s] members”).
29 338 U.S. 537, 542 (1950).




The possibility
        a) of independent executive branch authority
                i) over immigration

1) is significant
        a) in that
                i) any such authority could potentially help justify certain actions
                        A) taken by the executive branch
                ii) (although
                        A) actions
                                I) taken in reliance on such authority

                           could also potentially raise issues
                        B) if they were arguably within Congress’s purview).32

However,

the executive branch’s authority
        a) to exercise
                i) prosecutorial or
                ii) enforcement
                        A) discretion

1) has traditionally been understood
        a) to arise from the Constitution,33
                i) as discussed below.

Courts have historically not required that
        a) the executive branch have specific statutory authorization
                i) for particular exercises
                        A) of prosecutorial discretion.

Thus,

immigration officials would not necessarily be precluded
        a) from
                i) granting deferred action, or
                ii) taking certain other actions
                        A) that could permit otherwise removable aliens
                                I) to remain in the United States,
                                
1) just because federal immigration statutes do not expressly authorize such actions.34


30 426 U.S. 88, 103 (1976). Following the Court’s decision, President Ford issued an executive order reestablishing these employment restrictions. Exec. Order No. 11, 935, 41 Fed. Reg. 37301 (Sept. 2, 1976). When challenged, this order was found to be within the President’s authority. Vergara v. Hampton, 581 F.2d 1281 (7th Cir. 1978). However, in so finding, the reviewing court emphasized the President’s statutory authority under 5 U.S.C. §3301(1), not any
inherent authority over immigration or aliens.
31 Hampton, 426 U.S. at 104 (“In this case the petitioners have identified several interests which the Congress or the President might deem sufficient to justify the exclusion of noncitizens from the federal service. They argue, for example, that the broad exclusion may facilitate the President’s negotiation of treaties with foreign powers by enabling him to offer employment opportunities to citizens of a given foreign country in exchange for reciprocal concessions.”).
32 Any assertion of inherent, independent, or implied constitutional presidential authority in the field of immigration may be evaluated under the rubric established by Justice Jackson’s concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). The Youngstown framework, which the Court has characterized as bringing
“together as much combination of analysis and common sense as there is in this area,” has generally been applied when a President seeks to take action within an area generally considered to be within Congress’s purview. See, e.g., Dames
& Moore v. Regan, 453 U.S. 654, 661-62 (1981). Importantly, the scope of executive authority under the Jackson analysis is judged in direct relation to congressional action in the field. When the President acts pursuant to an authorization from Congress, his power is “at its maximum.” To the contrary, when the President seeks to take action that conflicts with Congress’s expressed will, his power is at its “lowest ebb, for then he can rely only upon his own
constitutional powers minus any constitutional powers of Congress over the matter.” Where Congress is silent, “there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.” Youngstown, 343 U.S. at 635-37. Any claimed constitutional authority justifying executive action in the field of immigration would, therefore, likely be evaluated in relation to the policies established by Congress in the INA and
other pertinent statutes.
33 See, e.g., United States v. Armstrong, 517 U.S. 456, 464 (1996) (noting that the Attorney General and the United States Attorneys have wide latitude in enforcing federal criminal law because “they are designated by statute as the President’s delegates to help him discharge his constitutional duty to ‘take Care that the Laws be faithfully executed’”); Heckler, 470 U.S. at 831 (“[W]e recognize that an agency’s refusal to institute proceedings shares to some extent the characteristics of the decision of a prosecutor in the Executive Branch not to indict—a decision which has long been regarded as the special province of the Executive Branch, inasmuch as it is the Executive who is charged by the Constitution to ‘take Care that the Laws be faithfully executed.’”).
34 An argument could also potentially be made that Congress has impliedly delegated the authority to exercise certain
(continued...)


On the other hand,

Section 103(a)(3)
        a) of the INA

1) authorizes the Secretary of Homeland Security
        a) to “perform such other acts
                i) as
                        A) he deems necessary
                                I) for carrying out his authority
                                II) under the provisions of this chapter,” and
                        B) has been construed
                                I) by some
                                II) as “commit[ting] enforcement of the INA
                                        (a) to [the Secretary’s] discretion.”35

The federal government recently noted its discretion
        a) under Section 103(a)(3)
        b) in seeking dismissal
                i) of a lawsuit
                        A) challenging the DACA initiative.36

The Secretary’s authority
        a) under Section 103(a)(3)
                i) of the INA

1) is, however, an authority
        a) granted to the executive branch
                i) by Congress and,
2) as such, is distinguishable
        a) from the President’s constitutional authority
                i) to “take Care” that
                        A) the laws be enforced.

Congress could, for example, potentially limit the discretion
        a) granted to the Secretary
                i) by Section 103(a)(3) of the INA,
        b) including by prohibiting particular exercises of discretion.

In contrast,

Congress probably could not directly limit the President’s authority
        a) under the Constitution
        b) to “take Care” that the laws be enforced.

The INA also grants the Secretary
        a) other types of discretion
                i) which
                        A) are sometimes mentioned
                                I) in connection with exercises of
                                        (a) prosecutorial or
                                        (b) enforcement
                                                (i) discretion,
                        B) but do not themselves involve determinations
                                I) regarding
                                        (a) when, whom, how, and even whether
                                                (i) to prosecute apparent violations of the law.

In some cases,

the INA expressly provides that
        a) certain determinations are within the discretion
                i) of immigration officials,
                ii) such as the determination
                        A) to waive the bar
                                I) upon admissibility
                                II) for alien
                                        (a) spouses or
                                        (b) children
                                                (i) of U.S. citizens or lawful permanent residents (LPRs)
                                                (ii) who have been present in the United States
                                                        (A) without authorization
                                                        (B) for more than 180 days.37

In other cases,

the INA
        a) does not expressly mention the discretion
                i) of executive branch officials,
        b) but effectively affords them such discretion
                i) by leaving certain details
                        A) of the statutory scheme
                        B) to be implemented
                                I) by the executive branch.

Thus,

the INA affords the Secretary discretion
        a) to determine
                i) which aliens are granted employment authorization
        b) by
                i) prohibiting the employment of unauthorized aliens, and
                ii) defining “unauthorized alien,” in part,
                        A) as an alien
                                I) who has not been “authorized
                                        (a) to be ... employed by the [Secretary].”38

Because it is conferred by Congress,

1) this discretion,
        a) like the Secretary’s discretion under Section 103(a)(3),

  could also be limited by Congress.







(...continued)
types of discretion to the executive branch since it has been aware of the practice, and could be said to have acquiesced. See, e.g., Johns v. Dep’t of Justice, 653 F.2d 884, 890 (5th Cir. 1981) (“Deportation is not, however, the inevitable consequence of unauthorized presence in the United States. The Attorney General is given discretion by express statutory provisions, in some situations, to ameliorate the rigidity of the deportation laws. In other instances, as the
result of implied authority, he exercises discretion nowhere granted expressly.”).
35 Texas v. United States, 106 F.3d 661, 667 (5th Cir. 1997) (rejecting allegations that the Attorney General had breached his nondiscretionary duty under the INA to control immigration, in part, on the grounds that enforcement of the INA is committed to the Attorney General’s discretion). See also Hotel & Rest. Employees Union Local 25 v. Smith, 846 F.2d 1499, 1510 (D.C. Cir. 1988) (citing Section 103(a)(3) to support the proposition that the then-Attorney
General enjoyed “broad latitude in enforcing the immigration laws,” and that the decision to grant or withhold extended voluntary departure “falls within this broad mandate”), aff’g, 563 F. Supp. 157 (D.D.C. 1983).
36 Crane v. Napolitano, No. 3:12-CV-3247-O, Defendants’ Motion to Dismiss and Memorandum in Support (filed N.D. Tex., Nov. 13, 2012). The INS had previously expressed the view that Section 242(g) of the INA meant that it had discretion not to pursue removal against an alien because such decisions are not judicially reviewable. See INS Exercise of Prosecutorial Discretion, supra note 15, at 9. However, DHS does not appear to rely upon this argument at present.
37 INA §212(a)(9)(B); 8 U.S.C. §1182(a)(9)(B). Any such waivers may only be granted where certain conditions are
met (e.g., the refusal of admission to the alien would result in “extreme hardship” to his or her citizen or LPR relatives).
38 INA §274a(h)(3); 8 U.S.C. §1324a(h)(3).




Prosecutorial Discretion Generally

The judicial branch has traditionally accorded federal prosecutors
        a) “broad” latitude
                i) in making a range of
                        A) investigatory and
                        B) prosecutorial
                                I) determinations,
                                        (a) including when, whom, and whether
                                                (i) to prosecute particular violations of federal law.39

This doctrine


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