Transcripts For CSPAN The Obama Administration And Separation Of Powers 20150110

20. You probably heard about that when president obama announced cases of executive acts that would not only expand the deferred action program, but also expand it to undocumented parents of children and or other measures less novel shall be discussed as part of this program. And surprisingly, this move has proven extremely controversial and political, leading to denouncements against congress and lawsuits challenging the legality of the acts, including one by nearly half of the state join in the litigation. So in this program we wanted to situate the conversation on immigration executive acts into a broader context and include other areas of law such as health, environment, gay rights, National Security where the president has also been accused of acting as an imperial president. What makes todays program particularly exciting, therefore, is that it is bring together scholars writing on issues of separation of powers federalism, Administrative Law and legislation, and writes rights across various area of law to examine whether and how the critiques waged against president obama have any merit. So as you know this is a daylong program. Thank you so much for showing up in the morning. It consists of four different panels. The Morning Program considers the constitutional structural issues raised by president obamas ministrations reliance on his executive Administration Power to govern the first in which we moderated by the professor, consider separation of powers, and the second panel which we moderated by me will , consider issues of federalism. In the afternoon and youll be having lunch on your own and we hope you come back the conversation turned to a rightsbased assessment of some of president obamas issuance of sole executive powers to test the general perception that the Obama Administration has largely acted without congress to expand rights. Professor jennifer will moderate that panel. And the final panel, we could not do this, we are going to be looking at the immigration example as a case study to keep deepen and expand the conversation to engage both the structure and the rightsbased critique of programs like deferred action and the recent expansion of program. So we hope you stay for the entire program or as much as you can. Finally, let me say how pleased i am that many of the papers presented today will be published in both the chicago law review and the American University law review. So thank you so much for coming today. [applause] welcome, everybody, and thank you to the organizers for their precedents in organizing this conference. We want to begin our session with a look at separation of powers. Recent uses of executive action have triggered accusations that the president is acting imperiling like a king or as a lawbreaker. They have contributed to a political environment in which congress has filed a lawsuit is to present an executive overreach in health care. 24 states are trying to limit obamas executive actions in Immigration Law. Similar limits have been leveled against obamas environmental policies. This panel will examine president Obamas Administration through the lens of separation of powers in order to assist the major scope of his executive actions. Our speakers will explore these issues through right of policies including immigration, health care, and tax policy. I will introduce our speakers briefly and then have them share their papers in the order in which they are seated. First, we have a professor who is a professor at Widener University school of law and also the director of the law and government institute. She is known internationally for her scholarly work on immigration or scholarship examines the government procedures in deciding who may enter into may remain in the United States. She has extensively studied Immigration Agency policymaking relationship between the three branches of government and setting, implementing, and interpreting Immigration Law. Her work draws on administer law, constitutional law and civil procedure as well as comparative study of procedures in other countries. She received the 2001 excellence in Faculty Scholarship award and was elected as a fellow for the national Administrative Law judiciary and the abs. Her talk it is entitled an unexceptional aspect of the battle between president obama and congress over Immigration Law. Next, we will have professor chad deveaux, an associate professor at concordia University School of law. Professor deveaux focuses on federalism and the separation of powers and the role of constitutional law in private law litigation. His work addresses the role of the judiciary and the system of checks and balances. He teaches constitutional law and contracts or which he won an award at concordia. His talk is based on research into debt ceiling step in congress and is entitled the fourth president ial power come analyzing the debt ceiling standoff through the prism. Next, we will have Professor William marshall, who was the professor of law at the university of North Carolina law school. Professor marshall has published extensively on freedom of speech, freedom of religion, federal courts, president ial power, federalism, and judicial selection matters. He teaches classes in all of these subjects. He was previously Deputy White House counsel and Deputy Assistant to the president of the United States during the clinton administration. He has also served as the solicitor general to the state of ohio. His talk will be based on recent publication entitled actually we should wait, evaluating the Obama Administrations commitment to unilateral executive branch action. Our last speaker will be Professor Joseph landau, who is an associate professor at fordham University School of law. Professor landau writes in the areas of Administrative Law National Security, in , Immigration Law and teaches courses in those areas as well. Professor landau has received the teacher of the year award in 2013, and hes been named one of the best lawyers under 40 by the national lgbt bar association. His talk is entitled immigration experimentation, and it studies the role of agency bureaucrats including Immigration Law. Without further ado i will turn over to our first speaker, professor jill family. [applause] thank you so much. Its my pleasure to start off our session today and be a part of this panel, in fact, hold a this whole discussion. And the topic of separation of powers certainly has been getting a lot of attention lately, and the push and pull between president obama and congress over various issues, in my opinion often quickly boils down to simple descriptions that pit the president and congress in the pick your term blow by blow death match of the century. While there is much to discuss and cooperation between the executive and legislative branches is strange, to say the least, i would like to start our discussion today by focusing on an aspect of the recent highprofile separation of powers dispute that on further examination is not really very novel or very noteworthy. You may be thinking, gee, its bad idea to start your talks by telling the audience what you about to talk about is not very noteworthy or notable, but the point is the hype may not always accurately reflect the reality of the situation. So as has been mentioned president obama recently announced actions affecting Immigration Law. He proposed to establish a process to allow for the parents of u. S. Citizens, or children of lawful permanent residents, or children of those with green cards, a process to allow for the parents to apply for something called deferred action, which is a promise not to deport for a certain period of time. So if the government is saying that you are not an enforcement priority for us and we will issue documentation that shows that we promised not to deport you, this does not provide the individual with legal status. He also proposed to expand deferred action for childhood arrivals programs, which was mentioned earlier, and that allows individuals the right without status as children to apply for that same promise, not to deport. That is a very brief summary of the substance of what president obama would like to see accomplished, but procedurally speaking, what exactly did he do that day in november . He did not issue any executive order. He did issue two president ial memoranda, but those addressed only two narrow issues of substance. It only addressed improving immigration bureaucracy and promoting better integration of immigrants into society. The most controversial item, establishment of prosecutorial discretion, the announcement that parents of u. S. Citizen children and lawful permanent children could apply for support, the daca extension, those are all actually in the form of Agency Guidance documents. So the actual documents are simply memoranda from the secretary of Homeland Security to lowerlevel Agency Officials directing the agency to observe certain prosecutorial discretion or establish a method for parents to apply to the promise to not deport. And so i have, i will show you real quickly, this is the november 20 memoranda that establishes a program for parents of u. S. Citizen children. It has Homeland Security letterhead on it, shows memorandum for director of usgis, from the secretary of Homeland Security. So thats all it is. What exactly is this . What exactly is this piece of paper . Its an Agency Guidance document, and guidance documents are nonlegislative rules that are used heavily throughout Administrative Law. In Administrative Law, the term rule is used very broadly to include both legislative and nonlegislative rule. Your legislative rules are legally binding think regulation while nonlegislative rules like these memoranda are not. A legislative rule must follow either the formal or informal rulemaking provisions of the administrative procedure act. And the informal rulemaking is much more common. And in formal rulemaking, the general path is that the agency publishes a notice of proposed rule in the federal register and then allows the public an opportunity to comment on the rule, and then the publication of final rule follows. The administrative procedure act allows exceptions to informal rulemaking for guidance documents like policy memoranda and interpretive rules. Policy memoranda, for example, are not subject to the notice of common requirements of the administrative procedure act. But as a consequence of the procedural shortcut, you are not legally binding on the public. So that means a regulated party may argue that a different rule other than the one that is contained in a guidance document should apply in any enforcement. Now, all types of agencies use nonlegislative rules a lot. Nonlegislative rules are really the workhorse of the executive branch. Guidance documents allow agencies to move more quickly and communicate more frequently with regulated parties. A policy memorandum, for example, like the one i showed you, simply expresses an agencys enforcement plan, the plans to go about enforcing the law. Agency guidance documents are controversial, but that has nothing to do with president obama or our current congress. The use of nonlegislative rules has been controversial for decades. Thereve been efforts to Reform Agency use of guidance documents in the 1960s, in the 1970s, in the 1980s, in the 1990s, and in the 2000s. So why are Agency Guidance documents controversial . They are controversial because when an agency exercises the powers delegated to it through the procedural mechanism of the nonlegislative rule, the concern is the nonlegislative rule binds, even though a policy memoradum is not binding on the public, regulated parties probably will conform with the memorandum says because the agency is expressing its enforcement plan at the path of least resistance, due to what the guidance document says. So the fear is that the rule has a legally binding effect despite that it is not the subject of notice and comment rulemaking. That is a legislative rule. It has a nonlegislative voice. So, for example, the d. C. Circuit held that the federal Communications Commission should have used notice of comment rulemaking instead of an interpretive rule to introduce a new requirement that allows landline telephone numbers to be transferred to wireless carriers. You probably all remember when this was going on. Because the new requirement did more than supply crisper and more detailed lines, that authority being interpreted, the d. C. Circuit held the sec did fcc did not properly invoke an exception to notice of comment rulemaking. And the d. C. Circuit also sort of regularly hears cases where people are challenging the use of a rule and a policy memorandum, and the court usually looks to the language of the policy statement and the agencys behavior, although i should say that this d. C. Circuit case law on this subject is anything but clear. If the document does not use binding language and the agency does not treat the rule is binding, the rule may be nonlegislative. So, for example, in the immigration context, a policy memorandum addressing issues affecting adjudication for specific immigration benefit which is to be a true nonlegislative rule, that is, the procedure matched what the agency was trying to accomplish because the guidance document was not binding on its face as applied. The memo itself stated that it only intended to provide guidance to lowerlevel adjudicators, and the court was able to point to adjudication outcomes that evidenced flexibility in application. Just to this term i would be remiss if i didnt mention that the Supreme Court is considering a challenge to a d. C. Circuit doctrine that commands an agency may not change a longstanding interpretive rule unless it uses notice and comment rulemaking to change the longstanding interpretive rule. So as examples show, its common in an action for a regulated party to challenge an agencys enforcement action as based on an invalidly formulated nonlegislative rule, that it shouldve been subject to notice of comment rulemaking, a and in the lawsuit mentioned earlier, where a group of states has raised this exact challenge in a lawsuit challenging president obamas recent immigration executive action. So in addition to other challenges such as an assertive violation of the take care clause, the states are also asserting procedural violation under the administrative procedure act, and the government has argued in response that the memoranda truly are a properly formulated nonlegislative rule. So this Administrative Law aspect of president obamas immigration executive action, my point is, is nothing new. Its not unique to the president , to the times, or to Immigration Law. Now, there is a trend in Immigration Law to come up with names that symbolize the Immigration Law with other areas of law, right, the most famous being crimmigration, the merging of the criminal law and Immigration Law. This naming is important because it represents where two seemingly diverse areas of law have intertwined. As much as i would love to have coined the term adminigration, that doesnt really fit my talk today because what my point is and what i hope i leave you with is the idea that what i have been talking about today is really just a plain the Administrative Law topic. At least this concern about executive power and the Obama Administration is not exceptional. In conclusion, i do not mean to say that president obamas recent executive actions raise no newsworthy issues or that Administrative Law issues are not important. In fact, i think that the procedures used by the executive branch in enforcing Immigration Law is an area that is right for scholarly inquiry. We need to examine comprehensively the procedures that accompany executive power in Immigration Law. And i think that as Immigration Law scholarship grow to separate out the constitutional roles of the president and congress when it comes to Immigration Law, we will inevitably consider the extent of the president s Inherent Authority over Immigration Law. And one question that i have to just leave with something to think about is, if the president has Inherent Authority over Immigration Law, what is the source of any of procedural restraint against the president s action . Does the Administration Procedure act become irrelevant if the president exercises Inherent Authority . Those i think are newsworthy questions, but whether an agency properly formulated a nonlegislative rule is not. Thank you. [applause] thank you, jill. Next we have professor chad deveaux from concordia University School of law. So my paper, which recently was published in the connecticut law review, focuses on what i think is the most extreme example of legislative dysfunction during the obama years, the reoccurring debt ceiling standoff between congress and the white house. As a way Background Congress prescribed the federal budget through a panoply of appropriation laws. The statutes struck the tragic have the federal to subsidize a mega projects and programs, and since the founding of the Republic Congress has passed these acts with full knowledge of funds and build in federal coffers to tax revenue will prove inadequate to cover the required expenditures. When this happens, other laws direct the president to periodically borrow enough money to cover the shortfall, and this includes the manner in which subsidized payments on the national debt. But Congress Appropriation laws stand in conflict with the debt ceiling law, which caps the amount of debt the government can owe at any one particular time. Since enacting the statute in 1917, congress has routinely prescribed budgets maintaining spending that so plainly exceed projected revenues that they will inevitably require the treasury to borrow funds in excess of the debt ceiling to make good on our obligations. And for Decades Congress has approved increases to the debt ceiling virtually as a matter of course every time we crept close to the borrowing limit. And all and all this is a very good thing because of the largest borrower in the world, a default by the United States government would in all likelihood trigger a worldwide economic depression. All that changed in the summer of 2011 when the republican majority in the house of representatives elected to weaponize the debt ceiling and use it, use the threat of a federal default, and the resulting economic and social calamities that would result to extort political concessions from the white house. They repeated this gambit again in 2013 and to a lesser degree last winter, and despite representation from the contrary by majority leader Mitch Mcconnell, it is quite likely that this summer when the federal when the available proceeds, when the treasurys funds dwindle we may face another debt ceiling standoff. To date, the seminal academic analysis of the standoffs was provided in an article in the connecticut law review to my professors Neil Buchanan and michael dorf, who i should point out have been very helpful in my own research. They refer to the situation as an incipient constitutional crisis. They refer to as the trilemma. And basically if the debt ceiling is ever, if the debt ceiling is ever breached, the president will be forced to choose between three options all of which would be directly contradicted by the statute. He will be forced to either unilaterally cancel federal programs, borrow money in excess of the debt ceiling, or unthinkably, raise taxes beyond the levels prescribed in the Internal Revenue code. And the professors posit that any of these would have a further consequence, that the president would be forced to violate the constitution because whatever option he chooses will be in direct contradiction to statute and, therefore, he wouldve failed to execute a duly enacted law of the United States. I attempt to analyze the presence options in the debt ceiling standoff under the task prescribed by Justice Jackson in his opinion in the youngstown steel seizure case. Im sure most people in the room are familiar with the case youngstown steel involved president trumans unilateral seizure of the American Steel industry when labor dispute threatened production during the height of the korean war. Justice jackson offered his concurring opinion which the Supreme Court later unanimously endorsed as the appropriate standard of analysis for questionable cases of executive exercises of executive power. Justice jackson asserted that president ial powers are not fixed but they fluctuate depending on the disjunction or conjunction with acts of congress. He offered his famous template to analyze exercises of president ial power. Now in the first zone the president acts pursuant the explicit or implicit congressional explicit or implicit congressional authorization. In this zone the president s powers are at their apex because he has all the powers article to all the powers article to get him and all the powers that congress has authorized to delegate to them under article one. In the second zone we deal with situations where congress has chosen to remain silent on the subject. This is the nether world, a zone of twilight in which the powers are between the president and congress are uncertain. Justice jackson advised us in this on congressional indifference or acquiescence may generally be seen to invite independent measures, measures on independent president ial responsibility, and Justice Jackson goes to great pains to point out that the mode of analysis or went in and come when you exercise the potential power is appropriate often depends on the imperative of events, in other words realworld consequences of a failure to act. Zone three involves a situation where the president acts in the face of explicit or implicit congressional rejection of the exercise of power. In this zone his power is at its lowest to the power cannot be sustained if it falls within a propulsive president ial power authorized by article ii, for example, if congress tried to restrict the president to issue pardons or something of that sort. Justice jackson concluded the steel seizure was in the third so because enacting what became the tafthartley act, congress had considered a version of bill that would authorize the president to seize the industries in emergency situations such as steel seizure, but the version of the bill they ultimately enacted omitted such a language, and from this Justice Jackson inverted implicit congressional negation of the exercise of such power. Further, because seizing American Industries could not be regarded as a preclusive executive power offered by article ii, the steel seizure was constitutionally illicit. So what is the president to do . What does youngstown steel tell us about the debt ceiling standoff . At first blush its in which all three of the presence options fall into the third zone because the unilateral cancellation of programs raising borrowing money raising taxes are all prohibited by statute. And certainly the powers to tax and spend, not powers exercised by the present irrespective of the will of congress. The youngstown and its progeny tedious when multiple stages. On the president s powers, the scope of his authority cannot be gleaned by looking at any single law in isolation. The correct analysis requires careful consideration quote of the general of all congresses commands used collectively, not in isolation. Collectively, the debt ceiling the situation faced by the president into the of the debt ceiling is ever reached would not fall within any of the three zones, because each of the three zones contemplates coherent congressional instruction. Congress can explicitly and implicitly authorized an act choose remain silent, or it can explicitly or implicitly indicate the exercise of power. The debt ceiling standoff, if the situation ever comes to fruition, the president will be faced with paradoxically faced with contradictory instructions. You must implement these programs to build a bridge, that aircraft carrier, etc. , but you may not have the money to do so. Short of multiplying come it would be impossible to comply with both commands. The president must choose one of the three laws to break in order to save the other two. I would suggest this requires expansion of Justice Jacksons taxonomy to include a fourth zone coming so that will do with situations that quite frankly had never happened before, where Congress Issues contradictory commands to the president. So what standards should apply in this fourth zone . Justice jackson himself acknowledged that congressional acquiescence invites independent measures on president ial responsibility. Ordinarily, this line of reasoning only applies in the zone of twilight because ordinarily when Congress Tells the president to do something or not to do something, that such a command comes without, confers no discretion. The president must obey and execute the commands issued by congress. But when congress has issued inconsistent, contradictory commands and has steadfastly refused to clarify or prioritize which command should proceed the other in event of a conflict, in fact, it has refused to acknowledge that a conflict exists, in my view that act by definition, that acquiescence invites independent measures on president ial responsibility. It empowers the president , invests the president with the discretion to choose to choose which of the commands must be sacrificed. The professors compare basically assert the president and the situation is faced with sophies choice. You must choose one of the three laws to suck vice and noted to to sacrafice in order to save the other two. I dont arrive at this conclusion easily. In fact, i argued in my paper that this sort of abdication of core legislative responsibility to the president is an existential threat to the longterm stability of our democracy, and i wish id more time to talk about but i draw heavily on the work of juan lin, the late yale political scientist, who talked about how tripartite government often face these conflicts. But i think, you know, as the maxim goes, anything follows from a contradiction and theres nothing in the statute that prioritizes one command over the other. Now, having said that, im not here, im not sure suggesting the president should unilaterally raise taxes. I think i would be an act of political suicide. But i think the constitutional standpoint congress abdication has authorized that extreme action, at least some illegal Vantage Point. To conclude, i just want to leave you with the words of warning that Justice Jackson ended youngstown steel with. You said the thinking of the crisis faced in the korean war and particularly cohesive power to legislate for emergencies belongs in the hands of congress. But only congress can prevent power from slipping through its fingers. By engaging in these standoffs and possibly doing so in the future, congress potential allowed core legislative powers to slip from its grasp by forcing the president to confront an emergency of congress own creation. Thank you. [applause] thank you, chad. Next, we have professor Wayne William marshall who is a professor the university of North Carolina law school. Thanks, all, for coming up today and thanks to the organizers of this whole program for putting on a really good program, but i thought it was going to be canceled because i was reading in the paper that Mitch Mcconnell has decided who wants to work with the president in the next couple of years, and so does speaker boehner. So, our era of congressional dysfunction is over. [laughter] we dont need to be a good we can all get together and just move on. The interesting thing about president ial power, over the long run as opposed to other constitutional issues, is peoples ideas evolve and change on constitutional issues. Whereas with president ial powers you can usually pick the exact date where it changes. [laughter] on Inauguration Day, on Inauguration Day in 2009, a lot of people who really loved president ial power that it was the worst thing imaginable. A lot of people who really hated president ial power thought it was the greatest thing since sliced bread. Thats the kind of background we have to deal with when thinking about president obamas exercise of unilateral executive action. I happen to support Immigration Reform very strongly. I happen to support a lot of the other substantive goals of president obama, but i want you think as were going through and talking about some the issues today, imagine a republican president who cant get through a repeal of the Capital Gains tax and decides i dont want to enforce anymore, so makes an announcement that nobody has to file a schedule d. And you dont have to declare any money he made from Capital Gains. Would that be constitutional as a collateral enforcement unilateral enforcement decisions . We have so many other tax issues to enforce, says the president i dont really have to bother to enforce the collection of Capital Gains tax. Lets think about Something Like that as background when were talking about unilateral president ial action. Lets also think about the question of congressional dysfunction, but exactly what is congressional dysfunction . What does that mean . Maybe im thinking back to seventh grade, but i thought the design of the constitution was to create dysfunction, was to create checks on things Martin Van Burens administration was met with folks who started off by saying we need to do everything we can to make this presidency fail. I want to step back for a minute. This particular congress is one of the most irresponsible in history. I have no doubt that thats true. Mitch mcconnell starts off in 2009 by saying hes going to do everything imaginable to make sure that the president s agenda was not passed them and deployed and he played ropeadope on health care for the first two years, saying, lets keep putting it down the line, lets come to compromise when there was no strategy to compromise. But even all of that as background, does that Mean Congress did anything wrong . There is a reason, after all why an out of Administration Party would want to do everything to obstruct the party in power, and thats because they know that the party in power will build on its successes for the next election, if its a reelection of a current president , or to increase its power congressional authority, in the midterm elections, or to elect a new president of the same party. This is called the permanent campaign. The phenomenon that we currently face where each party is consistently looking forward to the next election. So the idea that an out of power party is going to do everything they can to cause some breakdown in the in partys agenda and should not be unexpected. Is it inappropriate . Why should that party try to help the Current Party retain power . And finally with respect theres another particular example where i think is really out of place to suggest that congress is trying to block a president s agenda on legislation, it is being obstructionist, because i thought legislation was supposedly the province of the congress and not the president. So theres a reversal there if we switch that around. So thats a little bit of some of the reasons that im so but somewhat skeptical as to this notion that there can even be something called congressional dysfunction in the sense that it suggests that congress is acting somehow unconstitutionally when it doesnt enact or follow through with the president s agenda. There are areas of support giving the present power. One of the nationalist theory where the president is the only nationally elected office, and so, therefore, when the president is elected, and that means that he is invested with the power that regional officers do not have. David posner has a brilliant article coming out in june back, i guess its out now, saying that the president should have the power for self and self help. When Congress Acts badly the government step in and drop what and trump what congress is doing to make things, to be able to accomplish his agenda. But in the short moment some have left, i want to think we really want to add to president ial power in our current framework . The president already has amassed far greater powers than the framers ever wouldve envisioned by a number of circumstances that are just a Natural Evolution of the office. One is that the president can act expeditiously when congress cannot. That is invested the presidency in power. The second is the media, and the focus of the country is often on the white house and not on the capitol, because its easier to take a look at one person as the embellishment of the nation as a whole and that has invested the presidency with power. The president has more information at his or her disposal than congress has. The president has enormous resources of the Administrative State and all that it can do and after chadha the congress can either put some other kinds of limits on the president s stability to manage that state for the president own political purposes. And, finally, and going to come back to this in a moment, there is a oneway ratchet with respect to president ial power. Unless you deal with a case like noel canning where president ial power is subject to judicial review, thats not often the case. Often the legality depends on what previous president s have done, as the argument that the office of Legal Counsel looks at, and that just keeps on increasing. So whether we need to actually create and invest the presidency with more power than it already has seems to me to be pretty controversial. Now where exactly are the harms of suggesting that the president has extraordinary power . With respect to the theory, for example, to say when Congress Acts to obstruct the president should have additional power to be able to overcome that obstruction, that is what checking is all about. Paul wellstone was going to do everything he could before he died in a plane crash to stop the iraq war. That wouldve been congressional dysfunction, or wouldve led to congressional dysfunction had he succeeded in doing that. Does that make it improper, or is that exactly the kind of thing that we want a congress to do when it is facing a president with which it disagrees on matters of substantive policy . Second, the interesting thing about congressional dysfunction and using that as a reason to advance president ial powers is actually it encourages the president to shortcircuit the political system, because the president , instead of going to kansas and into montana and going into texas and going into all the places of the state with which there is opposition, he can just say, they arent letting me do anything, i need to take these powers on my own. If you dont like that example, imagine a republican president who does not want to go into michigan or minnesota or massachusetts and say that i just want to be able to do anything i can, because that congress isnt doing anything on its own to help me. Think about the predicament that puts congress in. If Congress Opposes to strong ly what the president is doing the president can say, at this point i can now just circumvent their opposition. Or if Congress Says, ok, i will do some of what you want to do but i want to curb your Enforcement Powers in one manner, or curb your authority in this particular area, the president can sign a law subject to a signing statement which has hes not going to abide by any restriction on the president s authority. This is a centering of continued power into the presidency that i think we all should be concerned about, no matter how much we agreed with the substantive policies involved. We do have a choice here. One is and theyre not good choices. One is between a dysfunctional federal government, and the second is with increased centralized power. I think that the structure of the constitution suggested that we should live with some of the former, the dysfunction, in order to prevent too much power concentrating in one branch. Let me go back to the middle sorry, back to my beginning, and talk about senator mcconnell and speaker boehner. Times do change. Adjusting constitutional law to deal with four or six years of history isnt necessarily the best way to construct a constitutional law to take us through other types of times. Thank you. [applause] thank you, professor marshall. Next, we have Professor Joseph landau who is an associate professor at fordham University School of law. Going to switch it up so i can reach the mic. Thanks so much and thanks so much to raquel. So im also going to be talking about the president s recently announced deferred action programs and i am also going to be talking about separation of powers. But im going to be talking about it from a slightly different frame than what some of my copanelists are using to address the issue. Unlike bill, not going to talk about the horizontal separation of powers, relationship between the president and the congress unlike folks on the panel after this one, im not going to be thinking about a kind of vertical separation of powers between states and the federal government through the lens of immigration federalism things that come up when we talk about state and local Immigration Enforcement policies. Im going to try a different frame. This is a work in progress and the id of this frame is to think about vertical Agency Relationships within the executive branch. My thesis is that change comes not only from the top, not just from the president , cabinet officials, and policy officials, but also from the bottom and from the middle, and that these relationships provide an important set of checks and balances within the agency that both account for the Forward Movement of Immigration Law, immigration extreme edition, immigration, but can also provide normative support for maybe not all but i think certainly some of the types of president ial actions that we are talking about on this panel today. So there are two core features of this kind of vertical Agency Relationships, what i call immigration experimentation, that i want to talk about. The first deals with prosecutorial discretion but not discretion at the top. The kind discretion that lower level officials within immigration and customs enforcement, within citizenship and Immigration Services, within cbp, within the executive office of immigration review, the kind of daytoday, traditional enforcement that these officers implement. They can exercise that discretion favorably at the backend of the immigration process. How did he do that . They do that by dropping a deportation charge, by dealing in or by not instituting removal proceedings in the first place out of respect for the harm that the deportation would cause to a particular individual where the equities are especially strong. And can do so for reasons that can eventually become policy bases across the board in and of themselves for whole categories of individuals who fit within that particular kind of profile. But thats the idea that im pushing today. That enforcement decisions are made with certain policy rationales in mind, and when this happens, when this happens time after time, when this happens enough, those policies those policy choices can begin to percolate within the agency and later become reflected in the kind of across the board directives that were talking about today. This can happen a number of different times and ways of looking at a few different case studies and going to talk to one or two with a time that i have. The first involves the situation that was faced by numerous binational samesex couples, couples in which you have a u. S. Citizen and a Foreign National in a samesex relationship where those couples were not eligible for traditional familybased immigration benefits, the kinds that many couples routinely use as a way to get an adjustment of status for the Foreign National partner, for the Foreign National spouse in the relationship at the reason for this of course is the never states that dont respect the rights of gay and lesbian couples to marry. That remains to be an issue but also for many years the issue of Section Three of the defense of marriage act which although is no longer good law, but both of these prevented numerous couples and been living together for a long time for being able to go through the ordinary adjustment process. Now, the position of the Obama Administration for many years was to do nothing about these customs. You could think of this as a horizontal issue. You think were going to go into court and sue the Obama Administration or embarrass the Obama Administration over going to try to get the very same kind of president ial directives for these couples as we see in the context of the dreamers with respect to daca and with respect to the recent transfer program. That would be a horizontal with thinking about this. But the vertical dimension is different. In the vertical dimension you ago, trying to persuade individual line officer to exercise favorable discretion in one case after another. How to do this . In removal cases you try to get immigration judge to delay or close, give a long continuance in the removal case, or maybe get a dhs attorney to drop the deportation proceeding, or maybe try to make sure, go to uscis to prevent a removal proceeding from being instituted in the first place. This actually worked. Lawyers were able to do this for their clients in case after case and time after time where government trial attorneys agreed to exercise discretion consenting to the closure of an immigration case of the deportation case, u. S. Benefits administrators within citizenship and Immigration Services agreed to defer action. And cases in which the Foreign National partner of a u. S. Citizen or an lpr wasnt even in removal proceedings yet but was afraid they would fall out of status and potential be subject to removal proceedings. Immigration judges within the eoir are willing to do the same thing. One case at a time, still going. While the larger lawsuits against the Administration Just the constitutionality of Section Three of doma were still in a briefing, we were beginning to see a kind of culture, a kind of time after time almost administrative commonlaw type decisionmaking among these agency bureaucrats because of this policy reason. Eventually, after enough of these cases had been decided this way, we saw a directive from the administration directing lower level officers to grant prosecutorial discretion, favorable discretion for longterm samesex committed couples. So thats the first feature of immigration experimentation that im talking about. There are other examples of this as well that i will get to in a minute, but first want to talk about the second feature which has to do with the separated and overlapping jurisdictions among the various subunits of the executive branch that handles immigration matters. Theres a lot of jurisdictional overlap. A Foreign National may be caught up in a particular kind of immigration problem that more than one agency can solve. And if youre not able to get a reprieve from one agency, you may be able to go to another and get the agency to give you a different ruling on your particular issue. These are the kinds of internal checks and balances that im interested in, in which an agency will place a modest check on another agency, exercising a form of intrabranch of oversight if you will. So we saw this in a binational samesex couple context between oftentimes if a dhs attorney wasnt willing to grant a favorable exercise of discretion, the immigration judge would agree to it, or usgis would agree to defer action. Another example has to do with e2 visas. This is a kind of treaty investor visa which the department of state and the legacy ins both shared jurisdiction over interpreting the actual requirements for obtaining the visa, developing competing interpretations until eventually one interpretation won out over another. Another example has to do with mandatory detention programs that were piloted under the george w. Bush administration in which line level officers refused to comply with the idea that you should mandatorily detain somebody after the issuance of a final order of removal. So these two features, line officer discretion on the one hand, and positive redundancy, jurisdictional overlaps within the agency, i think helps us to see that change can come not just from the top, but from the bottom as well. It also helps to contextualize and provide normative support for some of the kinds of a broader prospects will discretion programs that we are talking about today. From this perspective, president ial action is not so much about starting from scratch and creating a new policy out of nothing, but rather trying to take policy reflects what is already a longterm agency practice, a kind of administrative common law. What president ial action does in this scenario is rectified in consistencies, inconsistent behavior among various white line officers who dont treat like cases in like ways. We could even argue the president ial action in this regard is replacing a kind of absent judicial review because we know that these kinds of enforcement decisions are nonreviewable in court. So this vertical dimension is different from the standard horizontal president versus Congress Analysis that we generally bring to analyzing these president ial policies. Its also different from the conventional story that administrative constitutionalists often tell about the law inside the executive branch. A lot of the literature sees the present as a decider in chief whose actions of trickledown into the very spent ministry of arms of the agency, empowering those agencies to take on more different and greater action. This particular kind of lower level agency discretionary power is hard to get at because the decisions are not reported. We cant just go into west law or lexis with the reporters or what have you and learn about them. Its often the attorneys on the ground who have the most amount of information here. I should be clear i am not saying they horizontal approach, the separation of powers, the limits of president ial power the limits of congressional power, and the fit between the two is not the right starting point. I think it is the right starting point, but i just dont think its the only frame. Is the interplay between the president and the bureaucracy that can bring this important additional lens to the discussion that can complement the frames we already use and help us normatively solidify the validity of those president ial initiatives. Thank you. [applause] thank you, professor landau. What i would like to do is begin opening this session to questions and answers for our panelists. They have given us some rich food for thought and some points of disagreement, which always make for a fun discussion. I thought what i would you start by posing one or two questions to the panelists, and then youre welcome to approach the mic, if youd like to ask your own question. I would just ask when you do approach the mic if you could begin by defining yourself by name and affiliation so we know, we all know who you are. My first question for the panelists harkens back to something that professor marshall said about how your views on separation of powers might change beginning on Inauguration Day. And i wondered for our panelists, to what extent they think that procedural concerns whether they are expressed by concerns about separation of powers or violation of the administrator procedure act are, in fact, over these very controversial areas like immigration, samesex marriage health care, and the budget . Well, i think the thing, the first thing i would say about that is i think theres a misconception among the public and among large members in the bar in general that the body of precedent is promulgated by the courts. A very small fraction of the president that really precedent that really governs comes from the judiciary. The overwhelming majority comes from what happens in the past and to borrow madison partial words, how the constitution liquidated. Madisons words, how the constitution liquidated. I share bills concerns, that over time power has created to the president that was never there. Take the steel seizure case, the background involve the first what was ever the first unilateral president ial indication of ace of a fullscale war by congress. So i would fear, i guess, and this is not a Party Affiliation i support much of what president obama wants to achieve, but i worry very much that askcts that he may take could set a precedent that future president s would use that i would disagree. So over time, they may like or power and how we wage war in this country might become a norm. I just want to add, that this is actually i think we do need to be careful in terms of talking about separation of powers with too broad a brush because Immigration Law is exceptional in a lot of ways and i think that i agree with a lot of plays that we need to be careful and not just change our perspective on the separation of powers depending on who the president is and what our particular policy views of might be. When we look into Immigration Law, congress has given the president a lot of discretion to enforce Immigration Law. So i think we need to avoid painting with too broad a brush. We need to look at substantive areas of what the president is doing, it is not a separation of power despite what it seems to be on the first glance. A lot of policies that we are looking at, and jill, you brought up the first situation of the dhs memo, that this memo is one in a series of very similar memoranda about exercising favorable discretion that go back between and this argument has been made on a slightly different level, these memoranda have been issued time after time and at times that they incorporate previous memoranda. So if we are talking about Immigration Law and prosecutorial discretion, this is both extraordinary and ordinary, and we should recognize that these memoranda look very much like the ones that have been issued under the 70s and 80s democrat and republican president s alike. Goodbye. [laughter] the world is coming crashing down. Just think of the filibuster. Republicans say we need to do it, and you flip that around and all of a sudden, both sides take the opposite view, and they are not even embarrassed about it. With respect to immigration, the one question that i have is that did the president undercut what he eventually did by not just doing anything unilaterally in the first place and by saying that this required legislation and that he wanted legislation, and when he could not get it through, all of a sudden, he said, maybe we should just do it by unilateral executive action after all . I guess i will answer that first because the mic is right here and i dont want the chairs to fall off the stage. [laughter] you said that in your opening presentation this idea of selfhelp, i think it is a twostep process. First you try to use an ordinary mechanism that the constitution created of which the congress will pass legislation and send it to the president , when things break you gave us that argument and within that process, it becomes so dysfunctional and it breaks down so heavily, there ourselves help measures that can be used very modestly and to be used to remedy that core constitutional dysfunction. I have a mic down here now so you three can just be careful, hopefully no one can get hurt. [laughter] the only thing i will add to that is that immigration the law is very located, and i just want to float the possibility that perhaps the president did not fully realize his own power when it came to Immigration Law when he was making those statements. I would like to invite anyone who would like to ask questions to please come up to the microphone. Alan larson, George Washington law school. Is this mic on . I cant tell, so i will speak loud. In fairness to the president or not, i think he said that as a political fact that he would prefer that it would be done, second, on immigration, i urge everyone to read the olc opinion on it. What is most important is that the president told the dhs that they did not do it, so it is hard to say that that is selfhelp of the ordinary sense, and it raises a bunch of difficult questions when you raise the possibility that the president raises the possibility to deport anybody as a justification for just departing for hundred thousand a year. He did not have the manpower or the money to do anything else. What i want to ask everyone else is what the you think of these situations of the president ial aggrandize met of power aggrandizing of power . How should that have us think about aggrandizing president ial power as opposed to other situations in the Administrative Law cases, someone could take him to court . Well i think the problem that i dealt with and there is a possibility of judicial review and it is a very long road and the president could raise taxes either unilaterally or authorize access to the debt ceiling those ponds would be radioactive, and when redemption occurred, those bodsnds would be radioactive, and when redemption occurred, there could be a line of loawsuits. We have clinton versus the city of new york, where the the program would be canceled. I think the bigger problem for my paper would be what i would personally recommend from a liberal standpoint would be raising the debt stealing that feeling. Debt ceiling. You dont winners and losers like that, but it might be a long road before we have any resolution whether the bond situation is valid. I am not even going to talk. [laughter] i think it is a very plausible argument on what the president has done on immigration and it is perfectly legal. It is a perfectly plausible argument that it is not legal on the other side. I agree that the wealthy the olc is tempered. What kind of checks have to be put on the presidency when the courts are not there and the congress cannot effectively police it . Especially when each president ial Action Builds on another. I think that is the problem with president ial power and having the Justice Department being a final arbiter of that. It might not work in some instances and it might work in others and i would look at the Bush Administration on some of those kinds of issues and how effective the olc is with a check. David speck, the university of texas. A question from the perspective of us who do not know a whole lot on immigration a lot, and are trying to process this debate through other lenses. How is this debate normal the question is, how is this discussion within the boundaries of normal executive power . We are thinking about this as analogous to the epas rules on Clean Air Act and in that case, it seems reasonable to infer that this was within the agencys power to decide and within the statute to act, despite the fact that congress had failed to act. Is this a really a dispute whether the president s decision is within the boundaries of the legislative authorities that he has been given under a statute thank you statute . Thank you. I will just say that it is not exactly like that, because Immigration Law is quirky. We go back to some of the founding constitutional law cases in immigration along in the Supreme Court, and it talks about plenary power in the political branches of Immigration Law. As i sort of alluded to in my talk where it is going right now is it to figure out when you are talking about plenary power how do you divide that up between the president and congress . The Supreme Court says that because immigration can be an issue of national sovereignty, that congress and the president have this sort of ultra strong power when it comes to Immigration Law. So i think any discussion when you talk about president ial power, Immigration Law needs to be included, and that would be different from other areas of ministry to law of Administrative Law. Sure, i know there are a number of people in this room who have written about this and have addressed this, and i would refer you to the olc opinion that has been mentioned and some of the other law review articles and other pieces that people have written about this. Sometimes the discussion collapses into the previous question, we dont know exactly what the Supreme Court says about deference issues, but what we do have our legacy doctrines like the plenary power document, and legacy programs from prior administrations that we cannot look to. The reason i talk about vertical Agency Relationships and lowerlevel bureaucratic relationships is that it is another way of not just looking at the head to head combat between the congress and the president , and trying to understand whether this is something that has longterm expertise in it with the day to day activity of line level officers. Thank you. Thank you. Go ahead. I have been sitting back in this energy lot cluster and thinking about parallels, and listening, i wonder if we think in the broader theme of this symposium, which is about executive authority, which expands from what you are talking about these kinds of things that david just raised where theres actually delegated authority under a statute and then theres this additional layer not only of the interagency stuff that youre talking about and the sort of different level within agencies, but, of course, push and pull going on in the courts often where state and local governments line up not necessarily in an immigration context, but in an Energy Context on both sides of this issue. So the Supreme Court case that ends up undergirding a lot of how the Obama Administration justifies the Clean Air Act on Climate Change actually had state attorney generals on both sides in that case pushing. So i guess what i would ask for and, again,it may not hold as well in a plenary sort of power context, but if you take the broader context of executive authority or across a number of substantive issues, to what extent does that mute some of the concerns that are being raised in this panel . Not so much for the immigration context, but if for others . In other words, as administration changes and as the administrations change because theres so much push and pull going on among the three branches and among Different Levels of government, perhaps that sort of helps to balance out over time and prevents the kind of seismic shifting in these contexts. Hari, you had me until you said it balances out at the end. I think what it does im just repeating what i said before but i think thenprofessor kagans article in the harvard law review talking about how administration can use the Administrative State for political purposes is becoming the blue print. And i think administrations are becoming more and more sophisticated about how to use the Administrative State for their own political purposes and i dont see congress being an effective check on that. Thank you. The next question . This is directed primarily at chad. I like the youngstown framework that you set up a lot, and i think youre clearly right that when congress is equivocal orexplicitly contradictory thats going to sort of decrease its power and, therefore increase the executives power if you think of it as like a zero sum game. But i kind of want to push you on giving shape to [inaudible] it seems i think there are good arguments for making it more constrained giving it more contours than kind of the contradiction equals all that you presented in the talk. And i guess there are two ways i would think of it, right . One is the [inaudible] kind of looks like a variation of the first one because the president can pick one of the three horns, but say some fourth completely different option, then we might have a strong argument. And you kind of couched this in, these are not mutually exclusive, but you kind of couched this in political term but i think we could make a constitutional argument that one of these options would be perhaps less violent to many core legislators i think the president raises the taxes, kind of all maybe insane because thats so Core Congress whereas changing the debt ceiling, borrowing more money might [inaudible] well, i think so. Argue that the constitution itself prioritizes these commands. I, i dont see the constitution as limiting so muchas from a practical standpoint. What i would advise the president to do would be to ignore the debt ceiling because the other two options involve picking winners and losers. If you cancel programs, its going to be hard to do that without being accused of having political bias. If you raise taxes, that has its own issues and then who where do you raise them, who are you imposing them on, that sort of thing. So you do the least violence certainly, by unilaterally raising the ceiling. In terms of the lack of, the lack of good standards and rules to govern what happens in this zone, i think that same criticism would apply to the zone of twilight, right . Theres not the imperative of events and contemporary imponderables. Sometimes i wonder if he got that off a Fortune Cookie somewhere. It doesnt provide a lot of good guidance. So what i would say in this situation is that congress has the president s discretion is limited somewhat by what congress has already done. So if he did the unthinkable the politically unthinkable and unilaterally raised taxes, he couldnt do it beyond what was, the minimum necessary to pay congress bar tab. If hes going to cut programs, the constitution does create priorities there, to be sure. Judicial salaries cant be cut. I would say payments that would be required to be made to make good on takings cant be cut. I mean, there are priorities there. But beyond those priorities, i mean, congress has, congress has issued contradictory instructions, and it seems like the only inference you can draw from the legislation is, well, youve gotta figure this out. And the last thing, and im probably going over my time here, the other thing i kind of wanted to point out about the situation is when youre dealing with this, what youre really dealing with in a way is a situation that simultaneously resides in zone one and zone three at the same time. In the youngstown cases the court has said [inaudible] when they talk about youngstown steel when Congress Gives the president a command, that command by definition carries with it all authorities necessary for the due exercise of that command. Well, in appropriations statute , how can that not include lawful is the to the funds necessary to appropriate, to pay for, to pay the bill, right . So in a sense, congress has implicitly authorized the president to access the funds to pay for these things. They have also negated that act. So it seems zone four in one sense occurs when youre in zone one, zone three simultaneously. You know, i think the answer to that, the problem is the situation is basically, you know, the situation where Congress Needs to clean up its act. And i guess im probably taking too much time. Thats fine. Thank you. Our next question, jack bierman . Jack bierman who Boston University from Boston University. This is mainly directedat chad directed at chad also, and it follow on what you were just saying. I just wanted to point out quickly, though, if you are talking about spending money from a lump sum [inaudible] Supreme Court has said theres no judicial review in that, so that would be an option. I think before you jump to the conclusion that youre in this zone four, you want to think about the fact that its been pretty much of an understanding among the branches that theres no borrowing allowed unless Congress Allows for that extra borrowing. Theres a long sort of common law and state law tradition about borrowing when its being binding. So i dont think you can just sort of jump to the idea that quickly. And i want to push the my main question, you started answering it in your justprevious comment, but ive always thought the youngstown opinion is the most overrated in the history of the Supreme Court. [laughter] when it comes to the twilight zone, the only one where its interesting, he says thats going to be sort of politics and practicality. And it seems to me that what hes saying is that its a political question, and the courts shouldnt get involved. And im wondering whether you could say a similar thing in your zone four, that when Congress Issues conflicting instruction, the president basically can be free to pick whatever the president wants to do, and its up to politics to decide whether theres going to be any pushback on that. Its because and, again, you know, because thats basically, i think, and correct me if you think im wrong, but jackson said basically its a political question, not a legal question. I think thats largely true although we have a judicial, we have an opinion from the court and a unanimous one that involves a situation in the zone of twilight. I mean, what i would say though, from a normative standpoint is the consequences of a default would be so calamitous that if this actually were to happen, i mean, its going to be, i think its a situation that the courts cant really resolve, and the only thing this would be good for would probably be kindling for our trash can fires keeping us warm at night. So, you know, it seems like the, whats going to have to happen if were faced with that situation, the president s going to have to act quickly and do something. And itll probably thatll probably be, it probably wont be a court that reviews what he did, itll probably be, you know, the next election. Thank you. We have about ten minutes left so we certainly have time for this question if anyone keep my question under ten minutes. No, no, youre fine. [laughter] richard levy, university of kansas. I was interested that none of the people in all thediscussion of congressional dysfunction, no one really talked about electoral dysfunction. And it seems to me theres a pretty significant connection between what happens in elections and what congress can get away with doing or not doing, what the president can get away with doing or not doing. And id be interested in your comment on the extent to which the problems we find ourselves in can be traced back to the inability of the electorate or the electoral dysfunction that doesnt really discipline irresponsible behavior particularly by congress, but really by anybody. Thanks. That was actually a big theme in my paper that i didnt really have time to talk about. I approached the problem partly from the Vantage Point of, i dont know, many of you are probably familiar with juan lens had a famous paper in the 80s called the perils of president ialism. Actually, it was 1990, i think. He does a study of the success rate of the tripartheid separation of powers and compares them to parliamentary schemes, and he says that aside from the United States president ial schemes almost always ultimately fail because of the kind of problems were talk about here. That obfuscation in the legislative branch when theres, the parties are in conflict lead the president ultimately to act outside constitutional constraints and either you end up with a president who is impotent and subject to a coup or one who basically exceeds his constitutional prerogatives, and we have a becomes a dictator ship. I know this is probably controversial, but i would say that the real problem we have this those systems, and he really compares our system to latin american countries that have adopted a constitution similar to ours but, again, to borrow madisons phrase, those constitutions are the same on paper but liquidated differently in practice. But i think the big difference is one thats coming to life now in that those countries have multipleparty systems. And so when you have multiple parties, usually you have extremist parties. And our system has liquidated to historically where youve almost always had two parties, one right, one to the left, and they both are close to the middle, and the area of disagreement, i mean, when viewed compared to other countries, the disagreements historically between bill clinton and bob will bob dole, which seemed so substantial back in the 90s really wasnt that great. But what were looking at now with the tea party phenomenon, i think, is a situation where we may be getting extremisttype partisans into our system, and i have some fear that perhaps we are sort of breaking down into a multiparty system really. And historically, our type of government hasnt functioned well in those systems. So this might be the natural result of that, i dont know. On the other hand, and this isnt entirely responsive, its tangential ill confess, but look at Something Like deferred action for childhood arrivals, the dreamers, right . They, by nature this is not the electorate, dreamers dont vote but the mobilization not just among themselves, but also mobilizing individual members of congress to push the administration on their behalf you could say that it was a failure in that the dream act didnt pass after many tries. But its a huge success in the sense that they were able to mobilize in a way to bring about this very important president ial policy and not just mobilize as a single contained, you know protest movement, but mobilize by pulling all kinds of interesting and important levers that are part of the process getting members of congress to weigh in, etc. So in that sense its not about electoral dysfunction, its about learning from a very successful case study of wellfunctioning social movement. The answer to your question is, richard, is yes, its all about electoral dysfunction or at least a major part of it is but and i think part of thats increased because of the rise of niche media because of Campaign Finance and because of the polarization that that leads to. That said, i think were shortsighted if we say this is going to last forever. Things do change. Political climates do change and even if theres constant polarization on some issues, it may not be the same issues 15 years from now that it is now. And im not sure we can create a new separation of powers system to reflect those kind of concerns. Thank you. We do have five minutes for our last question. Hi, im eric from creighton university. I have kind of a foundational question. Lets assume that the Congress Puts in place a policy thats the law of the land that declares x is the policy. The president doesntlike it so does not like it, so the president decides that either the president will not enforce it, he prefers nonx or hell put in place a separate policy and he does so on a programmatic basis. Not for reasons that are typically attended to in prosecutorial discretion, you know, administrative finances, things of that sort. And so he really does it because he disagrees with that policy thats in place. My questions a simple one, does the purpose that underlies the president s action bear on the constitutionality of that action, or is it irrelevant . And if it is, is it determinative . Well, i guess ill just say, i mean, from my perspective the immigration situation doesnt share the same foundation as the hypothetical that you just proposed because what congress has said is, you know, here are some guidelines but, oh, by the way, executive, discretion discretion, discretion discretion, discretion discretion written into the statute a million times. And, you know, and then here well only give you enough money to deport a small percentage of the number of people who are here without permission. So in the immigration context, i dont even think you need to get to purpose because i think its just fundamentally a different framework. I mean, your question in a sense, its a good one to end on because it raises, in a way, the other frame of a number of the earlier questions that folks were asking about thinking about this from a sort of standard almost kind of chevron, if you will, Administrative Law context. You ask the kind of foundational question about constitutional nonenforcement. And i want to try to be responsive to this, but i also agree that its hard to think about that question so much in the abstract which, i guess, answers your question in a way by saying, you know, purpose may matter. Number one, as jill just said, you know, theres discretion built into this thing all over the place. There are massive resource constraints, as we all know. The immigration prosecutorial arm of the executive branch has, you know, resources to deport about 4 of those that are factually deportable. But there is a framework for thinking about this, and theres a whole debate about president ial nonenforcement with kind of functionalists on the one side, and within that functionalist frame one of the questions that gets asked often is whether the issue is ultimately justiciable. So you could contrast, if you will, the prosecutorial discretion of immigration with nondefense of the defense of marriage act. It wasnt forced, but it wasnt defended with the idea that the court could have the final say. Here again, as weve established, the court doesnt have the final say. But that is the other frame, and maybe a better frame to some degree, if were thinking about this horizontally than the admin law frame, and i would answer by saying i think the underlying purpose really does matter and really is part of that broader functionalist analysis. I have one minute . All right. [inaudible] one quick question and one quick answer. Sorry. I think part of the answer to the question may come from the supremecourt this year in the case in which the president has refused to enforcea congressional statute thats clear on its face. Political question has been ruled out. The president says its my Inherent Authority, Congress Says we passed the statute, the plaintiff says we want our rights under the statute. So it matters. Its not a question of money or anything else, the president says, no, cant make me do it, and well find out what the Supreme Court says. Case was argued november 1. All right, thank you. We have a 15 minute break until our next session, so please, thank you join me in thanking our panelists for this session. [applause] [captioning performed by national captioning institute] [captions Copyright National cable satellite corp. 2014] here are featured programs this weekend. On book tv, the pitfalls and we talked to the influence of hiphop on politics. And the u. S. Governments efforts to hear cure malaria. And brian turk uses abraham lincolns life to understand the White American view on slavery before and during the civil war. And a discussion on margaret sanger, and the impact class in politics had on birth control. Find our complete schedule on cspan. Org. Call email, or send us a tweet. Join the conversation, like us on facebook. Follow us on twitter. On the next washington journal Stephen Latourette now president and ceo republican main Street Partnership discusses the role that moderate republicans will play in the new congress. And the Human Rights Campaign talking about decisions on samesex marriage and whether the Supreme Court should hear oral arguments on it. American University Professor clarence was sayinglusane looks at the selma to montgomery march. We will take your calls and you can join the conversation on facebook and twitter. Washington journal, on cspan. In his weekly address, president obama reviews the economic progress made in 2014. In the republican response, the center from north dakota outlines the benefits of the keystone xl pipeline. Hi, everybody. About a year ago, i promised that 2014 would be a breakthrough year for america. And this week, we got more evidence to back that up. In december, our businesses created 240,000 new jobs. The Unemployment Rate fell to 5. 6 . That means that 2014 was the strongest year for job growth since the 1990s. In 2014, unemployment fell faster than it has in three decades. Over a 58month streak, our businesses have created 11. 2 million new jobs. After a decade of decline, American Manufacturing is in its best stretch of job growth since the 90s