THE BOUNDARIES OF EXECUTIVE DISCRETION: DEFERRED ACTION, UNLAWFUL PRESENCE, AND IMMIGRATION LAW

If a policy's wisdom rebutted all concerns about its legality, American law would be a vastly different domain. However, the Framers' design places process over policy. The tension between Pres Obama's Deferred Action for Parents of Americans and Legal Permanent Residents (DAPA) progr...

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Bibliographic Details
Published inThe American University law review Vol. 64; no. 5; p. 1183
Main Author Margulies, Peter
Format Journal Article
LanguageEnglish
Published Washington American University Law Review 01.05.2015
Subjects
Conflict
Deterrence
Families & family life
Federal legislation
Immigrants
Immigration policy
Law
Law enforcement
Moral hazard
Noncitizens
Residence requirements
United States > US
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Summary:If a policy's wisdom rebutted all concerns about its legality, American law would be a vastly different domain. However, the Framers' design places process over policy. The tension between Pres Obama's Deferred Action for Parents of Americans and Legal Permanent Residents (DAPA) program and the Immigration and Nationality Act (INA) is a case in point. This article is in five Parts. Part I discusses the text and context of the INA. Part II discusses the history of executive discretion in immigration. Part III argues that DAPA is a legislative rule requiring notice-and-comment procedures under the APA. Part IV argues that DAPA should not receive deference under the Chevron doctrine because the INA unambiguously precludes a discretionary award of benefits of DAPA's size and scope. Part V concludes that DAPA also fails the separation of powers test outlined by Justice Jackson in Youngstown.
ISSN:0003-1453
1943-5673