Prof. Legomsky Testifies Before U.S. Senate and House Judiciary Committees on Legality of Immigration Executive Order

Stephen Legomsky, the John S. Lehmann University Professor at Washington University School of Law, is becoming a fixture on Capitol Hill. Having recently returned from a two-year stint as Chief Counsel of U.S. Citizenship and Immigration Services (USCIS), in the Department of Homeland Security, he was called to testify at the January 29 U.S. Senate Judiciary Committee’s confirmation hearing on the President’s nomination of Loretta Lynch as Attorney General. The immigration issue dominated the day’s hearing.

Tyler Moran, the Senior Policy Advisor to Senate Minority Leader Harry Reid, commented “Steve provided a depth of knowledge on immigration law that no one else on the panel could match.”

When the House Judiciary Committee held a hearing a month later on the same subject, the Democrats called on Legomsky again—this time to face off against three Republican expert witnesses. At the hearing, Legomsky received a gracious compliment from U.S. Rep. Zoe Lofgren (D-Calif.), the former Chair (now ranking minority member) of the immigration subcommittee. 

This is how Lofgren began: “Professor Legomsky, I just want to say publicly that I’ve been in Congress for 20 years. I’ve read a lot of testimony in many hearings over the years. Your testimony is the singular best, most concise, logical testimony I have ever read in my 20 years in Congress, and I thank you very much for your service in that way.”

  • Prof. Legomsky’s Written House Testimony [view]  
  • Video of Prof. Legomsky’s oral House testimony: [view]
  • Video of Prof. Legomsky’s oral Senate Testimony (27 minutes): [view]

In recent months, Legomsky has also been prominently featured in national and international media on the same subject. He has appeared on the PBS News Hour, several times on NPR, Al Jazeera with Ray Suarez, and Voice of America, and he has been quoted in the New York Times, the Washington Post, the Wall Street Journal, ABC News, NBC News, the Huffington Post, the Los Angeles Times, Politico, the National Law Journal, and radio and print media in Australia, China, India, and Singapore. “This is a reflection of how important the immigration issue has become,” Legomsky explains.

Debate Stems from Presidential Executive Actions 

The debate has centered on a series of executive actions announced by the President on November 20, 2014. Among those actions, the most controversial has been the Administration’s decision to grant, on a discretionary case-by-case basis, “deferred action” for certain categories of undocumented immigrants, Legomsky explains.

The main beneficiaries are those who have lived continuously in the United States since January 1, 2010, have clean records, and either were brought here as children (the so-called DREAMERS) or have U.S. citizen sons or daughters. For those who meet the criteria and receive the favorable exercise of discretion, deferred action will provide a three-year reprieve from removal and a temporary work permit, both revocable at any time. Deferred action – first made famous when granted to Beatle John Lennon – would not, however, grant anyone a legal immigration status; only Congress can do that, Legomsky observed.

The President’s critics argue that these actions violate his constitutional duty to “take care that the laws be faithfully executed.” They claim his actions violate the immigration laws. The federal district court for the District of Columbia dismissed such a challenge, but in February a federal judge in Brownsville, Texas issued a preliminary injunction blocking implementation of these executive actions. Although the injunction was based on narrow procedural grounds, the judge’s language signals that he is likely to find the actions unconstitutional as well. Appeals from both courts’ decisions are currently pending, Legomsky notes.

Legomsky: President’s Actions Are Legal 

Legomsky staunchly defends the legality of President Obama’s immigration actions. He testified: “While I appreciate that reasonable minds can and do differ about the policy decisions, I take this opportunity to respectfully share my opinion that the President’s actions are well within his legal authority.” He pointed out that his opinion is shared by the “135 scholars and teachers of immigration law [who] joined in a letter expressing” the same view.

Legomsky’s 30-page single-spaced written testimony for the House Judiciary Committee lays out all the legal arguments that the critics have attempted to make and explains why he feels that none of them ultimately withstand scrutiny.

He points out that deferred action is merely one form of prosecutorial discretion—a “long-established and unavoidable practice in every area of law enforcement today, both civil and criminal. . . . When a law enforcement agency has only enough resources to go after a fraction of the individuals whom it suspects of violating the relevant law, it has to make choices. There is no alternative. In the specific context of immigration, Congress has explicitly authorized—arguably, in fact, required—the Department of Homeland Security to exercise prosecutorial discretion. Congress expressly makes the Secretary of Homeland Security ‘responsible’ for ‘establishing national immigration enforcement policies and priorities.’”

He also emphasizes “Congress’s conscious awareness that its appropriations for immigration enforcement fall far short of what the Administration would need for 100% enforcement.” (He notes that current funding permits prosecution of less than 4% of the undocumented population, an estimate that no one appears to dispute.) 

This, Legomsky argues, is “the clearest evidence possible that Congress intends for the Department of Homeland Security, like practically every other law enforcement agency in the country, to use its discretion to decide how those limited resources can be most effectively deployed.”

Moreover, he points out, deferred action has been recognized by name by Congress, formal administrative regulations that have been in force since 1981, and several courts, including the Supreme Court. Legomsky acknowledges that this program is the largest grant of deferred action to date, but none of the multiple legal authorities, he argues, state or even imply a numerical legal limit.

“When an agency sets its enforcement priorities—whether via deferred action or any other vehicle—there are two ways it could proceed,” Legomsky explained. “The agency could leave it up to each individual police officer and each individual prosecutor to decide what he or she thinks the agency’s enforcement priorities ought to be. Or, as the Secretary of Homeland Security has done here, the agency can formulate those priorities at the leadership level. The latter approach is far preferable” for a number of reasons upon which his testimony elaborates.

Legomsky also acknowledges that the temporary work permits have been controversial, and he concedes that they go beyond a simple decision not to prosecute. But the discretionary authority to grant work permits, he testified, has been “expressly granted by Congress, incorporated into the formal regulations, and in active use for more than three decades.”

Some critics (including Senators and Representatives who questioned him during his oral testimonies) have asked what he would say to a future president who, reminiscent of President Nixon, refused to enforce the environmental laws or the civil rights laws or the tax laws.

“Those are legitimate questions,” Legomsky acknowledges, but “I think there are concrete, realistic limits on enforcement discretion.” He offers four: The President must substantially spend the resources Congress has provided; the enforcement discretion the President exercises must be consistent with the power Congress has delegated; the particular priorities must be rational; and they must not conflict with any specific priorities Congress has mandated. President Obama’s actions, Legomsky argues, respect all those limits.

Added Policy Benefits 

Although his testimony focused on the President’s legal authority for these actions, he also summarized some of the policy benefits:

  1. “Most will agree that, with finite resources, it is sensible to prioritize national security, public safety, and border security over separating families and destroying the long-term ties of those who have lived peacefully and productively in their communities for many years;
  2. Positive grants of deferred action draw the recipients out of the shadows and into the open;
  3. Police chiefs and other law enforcement professionals know that communities are safer when undocumented immigrants who are either victims of crimes or witnesses to crimes feel secure enough to report the crimes to the police rather than avoid contact for fear of being deported;
  4. Federal and state tax revenues from those who receive deferred action have been shown to increase significantly; and
  5. Unscrupulous employers who currently know they can hire unauthorized workers at low wages will now have less incentive to hire them over U.S. workers and will no longer be able to drive down overall market wages or working conditions in the process.”

In his 30-year career teaching immigration law and several other subjects, Legomsky has advised both Democratic and Republican administrations, the U.N. High Commissioner for Refugees, and several foreign governments on immigration policy. He has published several books and many scholarly articles and is the author (co-author starting with the fifth edition) of Immigration and Refugee Law and Policy, which has been the required text for immigration courses at 183 law schools.