Chapman University law professor, John Eastman, recently wrote an article criticizing the Obama Administration for its latest amnesty directive, in particular, its use of “prosecutorial discretion” to issue work permits. The Office of Legal Counsel (OLC) itself has admitted that basing work authorizations on the doctrine has made it “unlike most exercises of enforcement discretion.” For Eastman, notwithstanding the exercise of “prosecutorial discretion” to provide blanket grants of amnesty, using it to provide work permits is “a distortion of the doctrine beyond recognition.”
Central to Eastman’s analysis is the lack of statutory authority for issuing work permits in former DHS Secretary Napolitano’s DACA memo as well as the “thin reed” of legal authority cited in Secretary Johnson’s DAPA memo, namely, the regulatory provision, 8 C.F.R. § 274a.12. The administration’s sole “statutory hook,” Eastman says, dramatically inflates the logical intention of Congress and is likely statutorily groundless.
8 C.F.R. § 274a.12 purports to allow for work permits for certain categories of illegal aliens, including recipients of deferred action. According to Eastman, “the regulation itself acknowledges [that] those provisions allowing for work authorization must be grounded in statutory authority.” But none of the statutes cited, he says, provide the necessary authority – see similar criticism regarding the IRS’s rule on ACA tax credits here.
Two statutes cited by the regulation he says are plausible, but unsatisfactory. Section 101 of the INA, the definitional section of our immigration laws, provides authorizations of legal status by way of 22 separate exemptions to the general term, ‘illegal alien.’ But, as Eastman has written elsewhere, beyond these carefully detailed categories, “there is no authority… for the executive branch to grant authorization for legal status.”
Section 274A of the INA, added by the IRCA amendments of 1986, provides exceptions to the general rule that it is unlawful “to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien.” “Unauthorized alien” is defined as any alien not “lawfully admitted for permanent residence” or an alien not “authorized to be so employed by this chapter or by the Attorney General.” (emphasis added). Despite IRCA’s general rule against employing illegal workers, the OLC claims this four word phrase lets the attorney general (now the DHS Secretary) to use the “regulatory process” to give himself unfettered discretion in granting lawful residence status and work permits to any category of illegal aliens he chooses.
IRCA and other provisions of the INA allow for certain illegal aliens, such as refugees, to obtain legal resident status and separately there are provisions which authorize or require the attorney general to provide those beneficiaries with work permits. According to Eastman, then, the logical interpretation of “by the Attorney General” is that it refers back to the detailed exemptions of sections 101 and 274A, which, again, specify when the attorney general may grant lawful residence visas and work permits. If this wasn’t the case, says Eastman, and Congress really intended to delegate complete discretion to the attorney general in granting work permits, “none of the pages and pages of carefully circumscribed exemptions would be necessary.”
This reading of the INA comports with Temple law professor Jan Ting. Since IRCA become law in 1986, Ting notes, Congress has on several occasions enacted legislation stipulating that the attorney general “mayauthorize” a class of aliens “to engage in employment in the United States,”, i.e., illegal aliens who were victims of spousal abuse. (emphasis in original). But “[w]hy would Congress,” he asks, “pass bills granting the Executive Branch discretionary authority to issue [work permits] to such narrowly defined categories of aliens if Congress had already empowered the Executive Branch in 1986 with discretion to issue [work permits] to anyone in the world?” Nevertheless, it is this four word phrase that Secretary Johnson and Obama’s OLC use to claim that the INA confers upon the secretary unfettered discretion to use agency memoranda and policy guidance to ignore whole sections of immigration law. As Eastman writes, by taking out of context a small bit of text from the statute, DAPA “ignor[es] the elaborate web of requirements for eligibility of lawful status that had been carefully constructed by Congress over decades.”
Moreover, in analyzing IRCA’s legislative history Eastman finds “no discussion whatsoever” of the phrase, a strange omission considering the sweeping authority it apparently provides. In contrast, one can find that IRCA’s provisions outlining the criteria for legalization were “hotly contested” and “finely wrought.”
Finally, there’s the DREAM Act, introduced and rejected in Congress 24 times from 2001 to 2011. If the four word phrase provides the attorney general with such unfettered discretion, Eastman says, Congress has been “wasting its time trying to push [the same amnesty] authority into law.” Crucially, he asks, “[i]f the President already had the unilateral power to impose the DREAM Act and beyond, why all the angst in Congress for over a decade of trying to get the bill passed? Further, “[w]hy did the President himself claim in 2011 that he had no such authority, when just a year later he claimed to have it?”
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