Saturday, February 4th, 2017

Obama’s Ruby Slippers: Enforcement Discretion in the Absence of Immigration Reform

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"This article explores how Deferred Action for Childhood Arrivals (DACA) emerged both from thwarted efforts at immigration reform and the Supreme Court’s highly anticipated decision in Arizona v. United States. I argue that DACA not only was adopted in response to repeated failed efforts to pass the DREAM Act; it was also promulgated in anticipation of a possible favorable ruling by the Court on S.B. 1070. In Part I, I examine the current separation of powers crisis in immigration policy. I look in particular at both the context in which DACA was adopted and at the ICE Plaintiffs’ challenge to DACA’s constitutionality in Crane et al v. Napolitano. I address several of the constitutional concerns raised, classifying them into four different types of arguments: 1.) The Youngstown-Curtiss-Wright Dichotomy; 2.) The Non-Delegation Doctrine Resurrection; 3.) The "Take Care" Crisis; and 4.) The Notice and Comment Myth. In Part II, I address the federalism crisis