Re-booting a Skill Set: Remembering that the law is still a valuable source of information

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By David Cruickshank | Feb 16, 2015

3-iStock_000002420311MediumI re-booted a neglected skill set last week — reading the law. Like many senior lawyers or lawyers in consulting or administration, we don’t read the law very often. Unless you are a litigator at the point of trial or motion preparation, someone else is reading and summarizing the law for you. Exercising this flabby muscle made me re-learn the value of core legal skills.

The public discussion that started my re-boot is the debate on the President’s powers to take executive action on immigration. I was on the verge of forming an opinion — based on print stories and the cable news shouting. Then I remembered this neglected skill. I am a former constitutional law professor. I should know something about legislative vs. executive action. Yet general knowledge seemed inadequate here.

I began with a summary column by Harvard Professor Jack Goldsmith in Lawfare. He accepts that “the administration has made a plausible case for legality” of the executive actions. He argues that the action contravenes constitutional political norms.

The non-partisan Office of Legal Counsel in the Justice Department wrote the opinion for DHS and the President’s Counsel. This is where you get to the read the law.

After reading the opinion and several of the leading cases, here is what I learned, at a summary level:

  • The President is not “trampling on the Constitution” or “granting amnesty,” nor is he “failing to defer to the powers of Congress.”
  • The legal briefing no doubt addressed the program requests made by Jeh Johnson, the Homeland Security Secretary; he is given the prosecutorial discretion under the executive action.
  • Mr. Johnson is a smart lawyer and would likely prefer to remain within his powers, rather than face court challenges for years (Disclosure: I worked professionally with Mr. Johnson at Paul Weiss).
  • Homeland Security (DHS) has the resources (granted by Congress) to deport less than 400,000 undocumented immigrants per year; there are 11.5 million in the country; it would take 29 years to deport them all at current resource levels.

Here is what I learned about the law:

  • The Supreme Court has recognized that the broad discretion exercised by immigration officials is a “principal feature of the removal system.”
  • The proposed action relates only to prioritization (Who gets deported first?) and deferred action (For whom will the INS hold back on deportation for an indefinite period?).
  • Prioritization still puts those with criminal records at the top of the deportation list; the low-priority category is for those who received a final deportation order after Jan. 1, 2014 and have potential eligibility for asylum or other legal relief.
  • Deferred action on prosecution is given only to aliens who are in the country, have a child who is legally here (e.g., born in the U.S.) and resided here before Jan. 1. 2010.
  • Those in the largest deferred-action category can work and pay social security taxes; they cannot get a legal path to citizenship by executive action; they will not get health care plans.
  • In every category of prioritization and deferred action, the possibility of case-by-case decision-making is present; an alien who was slated for deferred action could be moved into the deportation lineup.

Perhaps you’ve had enough of the law by now. My more considered opinion? The executive action is legal. It may have been politically imprudent or too confrontational, in the political sense. But I don’t think it is illegal. Reading through a swath of the law was challenging for an out-of-shape lawyer. But if you’re a lawyer, don’t you owe to a public debate your skill set in reading the law?