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Obama's Wobbly Legal Victory on Immigration

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The administration of President Barack Obama just won a big legal victory for its decision to let some children of illegal immigrants remain in the country. On the surface, that might seem to augur well for the administration's efforts to ease other immigration restrictions in the face of Congressional opposition.

Don't count on it. The federal court decision that backed Obama was based on precarious legal reasoning that's vulnerable to reversal by the Supreme Court.

On Tuesday, the U.S. Court of Appeals for the Ninth Circuit struck down Arizona’s refusal of driver’s licenses to dreamers, people brought here illegally as children. But the decision didn't rule on whether the president has the power to make immigration policy, focusing instead on the relationship between Arizona and the federal government. That leaves a lot of bigger legal questions unanswered.

The five plaintiffs in the case, Arizona Dream Act Coalition v. Brewer, are in the U.S. under a program adopted by executive order in 2012. The program created what’s called "deferred action" for removal for undocumented people brought to the U.S. by their parents before the age of 16. These "dreamers" are permitted to remain in the U.S. and are issued papers known as "employment authorization documents" for renewable two-year periods so long as they are studying or have graduated from high school or been honorably discharged from the military and aren’t charged with crimes.

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The deferred-action program was never authorized by Congress. In Arizona, at least, the program is unpopular. Just two months after it was passed, the governor issued an executive order of her own stating that the authorization documents "cannot confer lawful or authorized status or presence upon … unlawful alien applicants" and that dreamers would be denied state benefits including driver’s licenses.

The legal basis for the Arizona governor’s decision was that the deferred action announced by the president doesn’t change an immigrant’s legal status – and can’t, because Congress, not the president, has legal authority to make laws regarding immigration. The governor’s clever idea -- or pernicious idea, if you prefer -- was to align state benefits with formal immigration status, not with federal executive permission to remain.

Under the state’s policy, you need to be authorized to be present in the U.S. under federal law to get a license. The Arizona Department of Transportation will only accept employment authorization documents as proof of authorized presence if the applicant has or is seeking formal immigration status, or is challenging a change in status pursuant to express provisions of the Immigration and Naturalization Act.

That excludes dreamers because they don’t have formal immigration status and are not seeking it under federal law. They’re present subject to the discretion of the executive branch, which has essentially said that it won’t bar them from working or kick them out despite the fact that federal law would otherwise require it.

There were two ways the Ninth Circuit could have overturned Arizona’s policy. One was to say that it violated the 14th Amendment to the constitution, which guarantees equal protection of the laws.  As the court noted, there is no logical connection between the ability to drive and formal immigration status. And as it further commented, the record suggests a "reason for Arizona’s policy: a dogged animus" against dreamers. The judges said it was pretty sure that this animus, coupled with the lack of a rational justification, sufficed to violate the equal protection clause.

But the court chose not to rely on the constitutional holding, probably because it didn’t want to make it easier for Arizona to seek review from the Supreme Court. Instead it based its decision on more prosaic grounds. It held that Arizona’s policy interfered with the federal government’s power to decide who may or may not remain within the country.

Here’s where things get a little funky, legally speaking. Ordinarily, the doctrine of federal preemption, on which the court relied, is applied when Congress has occupied a whole field of law, to the exclusion of what might otherwise be overlapping state power. The theory is that, under the supremacy clause of the Constitution,  federal law trumps state law.

What makes preemption complicated in this case is that the dreamer rule wasn't passed by Congress. It’s an executive order, something that isn’t mentioned in the supremacy clause.

The court tried to get around this problem by saying that, under the Immigration and Naturalization Act, an alien is "deemed to be unlawfully present" if he or she is in the United States beyond "a period of stay authorized by the attorney general." Under this theory, Congress authorized the executive to decide who counts as lawfully present, so Congress, not the executive branch, preempted state laws to the contrary. The court also cited the Real ID Act, which says that people with "approved deferred action status" should be considered lawfully present.

But this is a tricky argument, and I’m not sure it’s right. The legal authority for deferred-action status isn’t federal law -- it’s the president’s inherent constitutional authority to exercise prosecutorial discretion, as a letter signed by 136 law professors makes clear.

The Obama administration entered office claiming it would be more modest about using executive power than the George W. Bush administration.  But that modesty is gone when it comes to immigration. It seems conceivable that the Supreme Court might want to review the question whether federal law really preempts Arizona’s actions here. The president’s exercise of executive discretion isn’t the same as preemption based on federal law. The Ninth Circuit pushed the envelope. Maybe it should’ve relied on equal protection.

  1. "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

  2. "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

  3. In 2009, Obama issued an executive order addressing preemption orders made by executive officials. The tone of the order was cautious. It directed the heads of federal agencies only to issue such preemption orders when a "codified regulation" already included them. It directed them to review all such orders issued in the last 10 years -- mostly by the Bush administration -- and revoke any that didn’t fit that criterion. And it directed the agency heads to be sure they were complying with a Clinton-era executive order laying out rules for executive preemption. Among other things, the Clinton order says that "national action limiting the policymaking discretion of the States shall be taken only where there is constitutional and statutory authority for the action." Dreamers are authorized under the Constitution because of the president’s inherent executive discretion. Their presence isn’t expressly authorized by statute.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

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Noah Feldman at

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Jonathan Landman at