Thursday, February 22nd, 2018

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


"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