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'Torture Memos' Author: Obama Can't Keep Immigrant Families Together. By Roger Algase

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John Yoo, a former Bush administration official and now Law Professor at U.C. Berkeley School of Law, and author of what he himself has referred to (in quotation marks) as the 'torture memos' (see Yoo: Commentary: Behind the 'torture memos' January 4, 2005), is now arguing in a Texas Law Review article which he co-authored with Robert J. Delahunty, Associate Professor of Law, University of St. Thomas School of Law, Minneapolis, that the president, whom he had previously contended had broad powers to torture people as part of the "war on terror", does not have the power to keep immigrant families together by granting DREAMERS relief from deportation.

See DREAM ON: The Obama Administration's Nonenforcement of Immigration Laws, the DREAM Act, and the Take Care Clause, 91 Texas Law Review, 781

The thrust of Professor Yoo's distinction between the two situations, is that in his view, immigration is not concerned primarily with foreign affairs, but with domestic ones, and therefore the broad executive powers which apply to the conduct of foreign affairs, including war, do not apply in the domestic context, which, in his view (which I do not dispute) immigration mainly belongs to.

In domestic matters, Yoo argues, the president is subordinate to Congress and therefore, if he goes beyond or against Congressional authority, the courts have the right to step in. This applies, specifically, according to Yoo, in the case of alleged presidential "nonenforcement" of the immigration laws by granting DREAMER's (and potentially, in today's context, many other unauthorized immigrants as well) some form of relief from deportation.

I find it somewhat amazing that Yoo manages to opine on executive power over immigration without any discussion that I have seen (based on a preliminary reading of
his article) of the famous (or infamous) Supreme Court decisions dating from the late 19th Century Chinese exclusion law era which I have been discussing in my recent comments. In fairness, there is no discussion of these decisions either in Justice Kennedy's majority opinion in Arizona v. U.S. (2012) which is the latest word form the Supreme Court on the scope of executive power over immigration enforcement.

But Justice Scalia, in his dissent in Arizona, quotes from the decision in Fong Yue Ting v. U.S. (1893), to the effect that executive and Congressional power over immigration comes from the inherent sovereignty of the national government and its power to control its own borders, not only from the power to conduct foreign affairs. Yoo does not mention this basic foundation of executive (and Congressional) authority over immigration enforcement, which has been part of our law for more than 120 years, and which was designed to keep the courts out of immigration decision-making, in direct opposition to Yoo's argument that the courts should intervene to stop the president from implementing DACA, or any extensions of that program which he may be contemplating.

Yoo also disputes the argument that Congress has delegated broad power over immigration to the executive. But this has been the case, not only in the present time, as detailed in the Arizona decision, but also from the time of the 19th century exclusion law period cases.

I will discuss Professor Yoo's article in more detail in upcoming posts explaining why, in my view, his contention that the president lacks executive power to keep immigrant families together by granting relief from deportation rests on a tortured view of the law.
__________________________
Roger Algase is a New York immigration lawyer and graduate of Harvard College and Harvard Law School. He has been helping business, employment and family-based immigrants uphold their legal rights for more than 30 years. His email address is algaselex@gmail.com

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Updated 11-18-2014 at 11:25 AM by ImmigrationLawBlogs

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