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 LawNational 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 wheth