JURIST Guest Columnist Jill Family, Widener University School of Law, discusses Obama’s recent immigration executive actions and the Obama administration’s exercises of executive power…

The push and pull between President Obama and Congress over various issues often too quickly boils down to descriptions that pit the President and Congress in battle. A popular narrative is that because the President and Congress can not work together, President Obama increasingly has relied on exercises of executive power, pushing the boundaries of what a president can or should do on his own.

On closer examination, not every issue raised by President Obama’s use of executive power is novel to these times. For example, it turns out that at least one controversy related to President Obama’s recent immigration executive actions is ordinary and common.

President Obama announced actions affecting immigration law on November 20, 2014. His announcement covered a broad range of immigration initiatives. Among other things, he proposed to establish the Deferred Action for Parental Accountability (DAPA) program, which will allow the parents of US citizen children and the parents of lawful permanent resident children (their children have green cards) to apply for deferred action. Deferred action is a promise not to deport for a certain period of time. It does not provide a legal immigration status, but it does reassure an individual that he or she is a low enforcement priority and that the government promises not to try to deport that person for a certain period of time.

Procedurally speaking, what exactly did President Obama do on that day in November? He did not issue any executive orders. He did issue two presidential memoranda, which address only two narrow issues of all of the changes he announced (improving the efficiency of the immigration bureaucracy and promoting the integration of immigrants). The DAPA program is addressed in a policy memorandum.

The actual document creating DAPA is a memorandum [PDF] from the Secretary of Homeland Security to other agency officials explaining what the Secretary of Homeland Security would like to see accomplished. In administrative law, such a memorandum is known as a “guidance document.” Other terms often used include “sub regulatory rule” or “non-legislative rule.”

Agency guidance documents are used heavily throughout the executive branch and are common to administrative law. In administrative law, the term “rule” is used very broadly to include both legislative and non-legislative rules. Legislative rules are legally binding while non-legislative rules are not. A legislative rule must follow either the formal or informal rulemaking provisions of the Administrative Procedure Act (APA). Informal rulemaking is more common: the executive branch agency places notice of a proposed rule in the Federal Register, allows for an opportunity for the public to comment and then considers those comments and publishes a final rule.

The APA allows for an exception to the informal rulemaking requirements for guidance documents. These non-legislative rules are not subject to the notice and comment requirements of the APA, but as a consequence of the procedural shortcut, they are not legally binding on the public. That means that a regulated party may argue that a different rule, other than the one in the guidance document, should apply in any enforcement proceeding.

All types of federal agencies use non-legislative rules. Non-legislative rules are the workhorse of the executive branch. Guidance documents allow an agency to move more quickly, and to communicate more frequently with regulated parties. A policy memorandum such as the memo announcing the DAPA program expresses an agency’s enforcement plans.

Agency guidance documents are controversial, but that has nothing to do with President Obama or our current Congress. The use of non-legislative rules has been controversial for decades. There have been efforts to reform agency use of guidance documents since the 1960s.
 
Agency guidance documents are controversial because when an agency uses a non-legislative rule to exercise the power Congress delegated to it, the concern is that the non-legislative rule binds practically without the procedural protections of notice and comment rule making. Even though a policy memorandum is not legally binding on the public, regulated parties probably will conform to what the memo says, because the agency is expressing its enforcement plans. The fear is that the rule has a legally binding effect despite that it is not the subject of notice and comment rulemaking.

Federal courts, especially the US Court of Appeals for the DC Circuit, commonly hear challenges to agency use of guidance documents. It is difficult to summarize the DC Circuit’s approach to uncovering policy statements that really are improperly formulated legislative rules. The court usually looks to the language of the policy statement and the agency’s behavior. If the document does not use binding language and the agency does not treat the rule as binding, the rule may truly be non-legislative.

A group of states is suing to halt the implementation of President Obama’s DAPA program. In addition to other challenges, such as an asserted violation of the Take Care Clause [PDF], the states are asserting a procedural APA violation. The states are arguing that instead of using a policy memorandum, the executive branch should have used notice and comment rulemaking to develop and announce the DAPA program.

This administrative law challenge to President Obama’s immigration executive actions is nothing new. It is not unique to this president, to these times or to immigration law. This is a common type of administrative law challenge that raises well-worn legal arguments.

President Obama’s recent executive actions do raise newsworthy issues and administrative law issues are important. But we should be careful not to paint with too broad of a brush when we describe the Obama administration’s exercises of executive power. Not every executive action pushes boundaries or puts our country into uncomfortable territory.

Jill E. Family, professor at Widener University School of Law, is known internationally for her scholarly work in immigration law. Her work draws on administrative law and constitutional law, as well as comparative study of procedures in other countries. She is the Director of the Law and Government Institute at Widener, and a Fellow of the American Bar Association’s American Bar Foundation.

Suggested Citation: Jill Family, An Unexceptional Aspect of President Obama’s Immigration Executive Actions, JURIST-Academic Commentary, Jan.15, 2015, http://jurist.org/academic/2015/01/jill-family-executive-actions.php.