The Trouble With Anti-Vaxx and the Role of the Courts

Anthony Albanese
COL ’16

Introduction

Vaccines have become a staple of public health interventions over the past century. Epidemics from smallpox to the measles have been stifled through compulsory vaccination. Yet the anti-vaccination movement is the strongest it has ever been. 48 of 50 states have carved out some sort of exemption to mandatory vaccination, whether it is philosophical, medical, religious, or some combination of the three.[1] The result is a serious public health threat. Herd immunity requires up to 94% vaccination rate for a disease such as measles.[2] Given the relatively low percent of people who file for exemptions, herd immunity could remain intact despite these opt-out laws. However, many of the people who tend to file these exemptions also tend to live near each other. This in turn creates communities that are dangerously below the threshold for immunity. Recently, in California—the poster child for this phenomenon—99 cases of measles have popped up via an infection at Disneyland. This is the highest infection rate for measles in twenty years.[3]

The issue could be tackled solely in the political realm. Exemptions can be removed just as easily as they are created, yet the unlikely alliance between liberal-leaning naturopaths and conservative religious groups, as well as libertarians who argue that mandatory vaccination is a violation of personal freedom, has made change difficult. Politicians have declined to take a strong stance on mandatory vaccinations. Presidential hopeful Rand Paul recently stated, “I don’t think there is anything extraordinary about resorting to freedom….The state doesn’t own your children. Parents own the children. And it is an issue of freedom and public health.”[4] Paul is a graduate of medical school, so the fact that he has taken this stance emphasizes that the political calculus of taking a stand against the anti-vaccination movement simply does not work out to be positive.

This has left a significant portion of the fight against the anti-vaccination movement to play out in court. An analysis of past precedent involving vaccines is essential to understanding what challenges to compulsory vaccination have been thwarted, and what legal options are available to fight the anti-vaccination movement today.

Supreme Court Precedent — Conflicting Principles

The main source of precedent relating to vaccines comes from the Supreme Court’s decision in the 1905 case of Jacobson v. Massachusetts. This took place before the time of exemptions of any sort, and challenged the principle of compulsory vaccination at its core. Chief Justice Harlan’s majority opinion asserted the idea that such mandates fell under the states’ police powers. Even in 1905, Harlan understood the public health threat that arises when people refuse to vaccinate. He argued that “the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good.”[5] This is a ringing endorsement of the social compact in public health, and a rejection of the “freedom” argument of anti-vaccination advocates.

The decision in this case had two effects. First, it essentially ended challenges to the constitutionality of mandatory vaccination. It also galvanized the anti-vaccination movement. The Anti-Vaccination League of America was founded not three years later.[6] Pressures from these types of groups were the cause of the prominence of exemptions, and therefore opened the door to future legal challenges.

Pierce v. Society of Sisters, while not directly involving vaccinations, provides an important precedent that plays well with the anti-vaccination argument. See the following from the majority:

“The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”[7]

Simply put, in Pierce, the Court made a powerful assertion that parents have a general right to raise their children as they please. This is pertinent considering that vaccinations today are primarily spread through mandatory vaccination of children as a condition to enter school. The principle established in Pierce is one that rings true with liberal naturopaths and conservatives alike.

Prima facie, these cases may seem unrelated. Upon closer inspection, one can see a conflict in court doctrine between upholding the right of the parent to rear their own children, and asserting the ability of the state to intrude via its police powers for the sake of the common good.[8] Primarily, the argument of the state has been favored by the Court. For example, in Prince v. Society of Sisters (1944), it was made clear that the states have some significant power to intervene over parental will for the well-being of the child—even to the point where religious freedoms are restrained.[9] Still, the logic in Pierce is one that resonates with anti-vaccination arguments.

Current Challenges: Who’s winning?

While Pierce has arguably been the more significant case in terms of overall influence, Jacobson has ruled in the realm of vaccinations. In the most recent challenge of Philips v. City of New York, the US Court of Appeals of the 2nd Circuit upheld the right of schools to bar unvaccinated children from school if another student contracts a disease preventable by vaccine—even if the child has received an exemption. The precedent invoked was none other than Jacobson. Further, the Court asserted that New York could constitutionally mandate all vaccinations, and that the allowance of an exemption is above and beyond what is required by the Constitution.

It is clear that the sentiment of Pierce factored into the plaintiff’s argument. As the makeup of the high courts change, it’s foreseeable that this argument could become more favorable in the courtroom. While it is an uncommon occurrence for the Court to completely overturn precedent, there have been many times when doctrines have been loosened and expanded, such as the applicability of the Commerce Clause. It is especially prudent to consider that rulings against vaccine critics will only further galvanize the movement, as it did in 1905 after Jacobson. Indeed, the appeals will not simply cease overnight. According to the New York Times, Philips is already looking to appeal to the Supreme Court.[10]

 What’s Next? Options in Tort Law and the NFIB Decision

From the previous analysis, it’s clear that the courts have built a strong first defense against those who refuse to be vaccinated in championing the police powers of the states. On the other hand, these same police powers are what allow anti-vaccination organizations to lobby for exemptions. A second line of defense is now necessary. How can the courts, in tandem with policymakers, further efforts to raise vaccination rates?

One option involves tort law. If one could trace back the contraction of a preventable disease to someone who wasn’t vaccinated, they could be sued for damages. Anthony Ciolli, faculty at the University of Pennsylvania Law and Medical Schools, notes that this method would be particularly useful regarding HPV vaccination.[11] Since HPV is translated sexually, it could be traced back to a specific partner. Ciolli argues that the use of tort law in the realm of vaccines could be a significant deterrent to filing for exemptions, as people fear high costs of liability. Yet, not all agree with this assessment. Ross Silverman of Indiana University speculates that the application of tort law would have quite the opposite effect. According to Silverman, not only would it not increase vaccination rates, but would also undermine faith in the public health system and trigger further polarization of the pro and anti-vaccine camps.[12] No matter which assessment is right, one thing is clear: the tort approach has little application in regard to most diseases. Tracing a case of measles, which can spread through the air, is much more difficult and far less practical.

In the wake of NFIB v. Sebelius, another option seems to have emerged. The majority opinion, in interpreting the individual mandate as a tax on inactivity as opposed to a penalty, has opened up a new legislative avenue for regulating health policy.[13] If the government can mandate that all individuals buy health insurance or face a tax, it doesn’t seem too hard to believe that the federal government could legitimately create a similar mandate for vaccinations. Little commentary has been made regarding this possibility, most likely because the doctrine passed down in NFIB is still rather untested. Unfortunately, there would need to be some political movement for this to become a realistic possibility, and as the aforementioned comments by Rand Paul demonstrate, there is currently little political will. However, the same argument could have been made about health care reform prior to 2009. If the stars align and vaccine policy reform reaches the national agenda, it is possible given the decision in NFIB that a federal mandate could be upheld in court.

Despite the challenges of these proposals, the significance of the role of the court system is clear. Upholding mandatory vaccinations under the police powers over the past century has been crucial in ensuring broad vaccination against preventable disease. Fighting exemptions, however, will require more nuanced legal approaches. How the courts deal with the legacy of NFIB, and whether tort law can successfully be applied will be the next important determinants in improving vaccination rates—and as a result, public health.

Notes

[1] Mariano Castillo, What vaccination exemptions does your state allow? CNN (2015), http://www.cnn.com/2015/02/03/health/vaccination-exemptions-state-by-state/.

[2] Jonathan Cohn, Rand Pauls Vaccine Comments Are Latest Chapter In 136-Year-Old Debate Huffpost Politics, http://www.huffingtonpost.com/2015/02/03/rand-paul-vaccination_n_6604498.html.

[3] Lisa Krieger & Jessica Calefati, Measles outbreak: vaccination exemption would end under proposed California law San Jose Mercury News (2015), http://www.mercurynews.com/health/ci_27458564/measles-california-outbreak-vaccination-exemption-religious-belief.

[4] See Cohn, supra at note 2.

[5] Jacobson v. Massachusetts, 197 U.S. 11, (1905)

[6] Toward a Twenty-First Century Jacobson v. Massachusetts, 121 Harvard Law Review 1820–1841 (2008).

[7] Pierce v. Society of Sisters, 268 U.S. 510, (1925)

[8] Jonathan Cohn, Rand Pauls Vaccine Comments Are Latest Chapter In 136-Year-Old Debate Huffpost Politics, http://www.huffingtonpost.com/2015/02/03/rand-paul-vaccination_n_6604498.html.

[9] Prince v. Massachusetts, 321 U.S. 158, (1944)

[10] Patrick McGeehan, New York Vaccine Requirement Is Lawful, a 2nd Court Says The New York Times (2015), http://www.nytimes.com/2015/01/08/nyregion/state-vaccine-requirement-is-lawful-a-2nd-court-says.html?_r=0.

[11] Anthony Ciolli, Mandatory School Vaccinations: The Role of Tort Law, 81 Yale Journal of Biology and Medicine 129–137 (2008).

[12] Noah Berlatsky, Fighting the Anti-Vax Movement With Lawsuits The Atlantic (2015), http://www.theatlantic.com/health/archive/2015/02/fighting-the-anti-vax-movement-with-lawsuits/385130/.

[13] National Federation of Business v. Sebelius, 567 U.S. ___, (2012)

Medicaid Expansion and the Supreme Court

John Channing Ruff
Student Contribution

The Affordable Care Act (ACA) offers states the option of a completely federally-funded expansion of Medicaid for the next three years, but many governors have declined that expansion. As a result, there are approximately fifteen million potential Medicaid-eligible people without insurance coverage. The federal government has been unable to compel wayward governors to expand Medicaid due to a ruling by the Supreme Court and political realities. I explain and outline the controversial provisions and their impacts while explaining the Supreme Court’s impact on the legislation’s effectiveness.

When passed in 2010, the Affordable Care Act called for states to begin expanding their Medicaid programs, gave Health and Human Services (HHS) the authority to enforce the expansion, and instituted a system by which states that refused to comply would see a reduction in federal aid (Musumeci 1). The Supreme Court famously upheld the individual mandate which required most people to maintain a minimum level of coverage in its 2012 ruling. The Court’s logic was that the penalty assessed to those who failed to meet the coverage requirement fell under the federal government’s constitutional authority to tax. The Supreme Court had ruled that the ACA’s Medicaid expansion was unconstitutional because states had not received “adequate notice to voluntarily consent” to expansion, and a state’s entire federal Medicaid funds were at risk for non-compliance; they called the Medicaid expansion “unconstitutionally coercive” (Musumeci 1; Kliff). The Court’s decision meant that the expansion of Medicaid was left to the discretion of individual states. Predictably, the majority of Republican governors chose not to accept the additional funds, meaning their state programs maintained the status quo, while Democratic governors happily expanded their Medicaid programs.

The most obvious obstacle to the federal government now faces to mandating an expansion of Medicaid is the “constitutional” barrier set forth by the Supreme Court. That being said, an extraordinary impediment more significant than the Court’s decision would need to be overcome in order to expand Medicaid. The political chasm that runs through the heart of healthcare policy would prevent such an expansion even if the political will existed in Congress and plenty of notice were given to states (effectively resolving the Court’s concern with the mandate). It is therefore necessary to define and quantify the nature of this political fracas.

The crux of the disagreement between Democrats and Republicans is over the issue of revenue and personal responsibility. Practically every Republican that is elected to the House of Representatives and Senate is goaded into signing a pledge to never raise taxes; they are then obliged to abide by this pledge or be financially severed from the party and left to wither in the political wilderness (60 Minutes). Their anti-tax stance means that an entitlement program such as Medicaid is the bane of the Republican Party’s existence and the object of their most vitriolic ridicule. Republican governors view Medicaid expansion with suspicion; forty-three percent of the nation’s budget is already fixed on entitlements and though their states would not have to bear the burden of expansion, they recognize that additional revenues must come from somewhere (Week 9, slide 4). They also recognize that “revenue” is political doublespeak for taxes, from their point of view, a Medicaid expansion means either growth in the national debt or a Federal tax increase on their constituents. Democrats argue that the Federal government extracts the revenues that would be used for Medicaid expansion anyways and that these funds might as well be brought back to the states. (Bluestein)

It would be foolish to assume that the nature of the political conflict over healthcare is based solely on principle. Alas, healthcare accounts for about $2.7 trillion of our economy every year (which is about one-sixth of our total GDP). It is a massive industry, which means it spends handsomely on lobbying efforts (World Bank, The Toxic Politics of Healthcare). It makes it much easier for politicians to support certain healthcare policies over others when upwards of $400 million is spent lobbying them, more than any other industry (Steinbrook 3). It is important to remember that there are many stakeholders in the healthcare industry and that they often possess opposing interests.

In fact, when it comes to issues like Medicaid expansion individual stakeholders may have internalized opposing interests; they often must choose between the lesser of two evils. For instance, one might logically assume that insurers would support an expansion of Medicaid. The government would pick up the tab for an expensive previously uninsured segment of the population, possibly driving prices down. Insurers save a pretty penny in this scenario, but since the late 1990s many states have pursued a managed care model with their Medicaid programs. This means they pay a flat fee per Medicaid recipient to private insurance companies, who then “manage” the care of each recipient (Week 4, Slide 12). States instituted this model because they believed it would save money, but costs have risen significantly despite the implementation of managed care (Week 4, Slide 15). Any expansion of Medicaid would introduce something that insurance companies despise and spend considerable time trying to mitigate, uncertainty. Expanding the number of recipients also expands the risk pool; this change in insures calculus could make managed care much less lucrative.

Surely there must be a stakeholder that would welcome an expansion of Medicaid, hospitals and providers for instance. It’s natural to think that an expansion would mean an increase in the number of insured patients and therefore an increase in revenues. If only the economics of healthcare were that simple, Medicaid pays about 59 percent of what Medicare does and the ACA calls for a yearly reduction in provider reimbursements; many providers are already refusing to accept Medicaid patients (Matthews). Doctors and hospitals view Medicaid expansion as a double-edged sword that may cut profits instead of costs.

A duality of self-interest permeates the entire system, as care at a lower cost means that somebody gets paid less and jobs are lost; however, when $2.7 trillion changes hands “no one will happily receive less” (Berwick). The political toxicity of healthcare is readily apparent; the Supreme Court will hear yet another ACA case this session. Republicans driven by big lobbying dollars and their constituents’ suspicion of science, ambivalence about federalism, and ambivalence about the poor are intent on ensuring that the failure of the ACA becomes a self-fulfilling prophecy (Berwick).

Republicans have been successful at stopping the expansion of Medicaid and allowing employers to pick and choose what they will cover; now they are challenging the federal government’s authority to provide subsidies to individuals who did not buy their insurance through a state exchange. About eighty-seven percent of those who bought plans on HealthCare.gov received subsidies that limit the cost of coverage to no more than nine-point-five percent of their income. Almost five million people received subsidies through the Federal exchange and paid an average of $82 a month while their premiums would have been $346 without assistance (Mears).

Sarah Palin coined the term “death panels” after the ACA was enacted. Since that time the Supreme Court has been the only government body to restrict access to healthcare. Their decisions have severely curtailed the law’s effectiveness and left millions stranded without insurance. The disjointed nature of the American healthcare industry is indicative of interstate commerce gone awry.  Rather than upholding the federal government’s constitutional authority to legislate on this issue, the Court left the law hamstrung. The Court’s decisions caused a myriad of problems with the ACA’s continuity, which has only opened the door to more litigation. The Court would have been wise to make a broad determination of the laws constitutionality; their nitpicking of provisions has transformed the Supreme Court into a quasi-legislative body. This is neither their purpose nor their strength. Lastly, the Court will decide whether to eliminate the healthcare coverage of five million more people, on top of the 15 million who have not received Medicaid coverage due to their 2012 decision, this summer (Beutler). The Supreme Court should realize that they are playing with people’s lives; it is no time to flex their judicial muscle. They should use their discretion in deciding cases involving complicated pieces of legislation, allowing legislators and the executive time to work these issues out through the democratic process.

 Works Cited

Berwick, Donald M. “The Toxic Politics of Health Care.” American Medical Association (2013): n. pag. Web. 05 Nov. 2014, accessed via Blackboard.

Beutler, Brian. “The Supreme Court Is Now a Death Panel.” New Republic. New Republic, 07 Nov. 2014. Web. 08 Nov. 2014.

Bluestein, Greg. “Jason Carter Sharpens Call for a Medicaid Expansion | Political Insider Blog.” Political Insider Blog. The Atlanta Journal Constitution, 13 June 2014. Web. 09 Nov. 2014.

Bream, Shannon. “Supreme Court to Hear New ObamaCare Challenge.” Fox News. FOX News Network, 07 Nov. 2014. Web. 07 Nov. 2014.

CBS 60 Minutes: “The Pledge” http://www.cbsnews.com/video/watch/?id=7389006n&tag=cbsnewsMainColumnArea.10

Fisher, Daniel. “Supreme Court Upholds Obamacare: What It Means, What Happens Next.” Forbes. Forbes Magazine, 28 June 2012. Web. 08 Nov. 2014.

“GDP (current US$).” Data. The World Bank, n.d. Web. 08 Nov. 2014.

Kliff, Sarah. “The Supreme Court Surprise: Medicaid Ruling Could Reduce Coverage.” Washington Post. The Washington Post, 28 June 2012. Web. 08 Nov. 2014.

Matthews, Merrill. “Doctors Face A 24% Pay Cut In Both Medicare And Medicaid Reimbursements.” Forbes. Forbes Magazine, 2 Dec. 2013. Web. 09 Nov. 2014.

Mears, William. “Supreme Court to Review Another Obamacare Legal Challenge.” CNN. Cable News Network, 07 Nov. 2014. Web. 07 Nov. 2014.

Musumeci, MaryBeth. “A Guide to the Supreme Court’s Decision on the ACA’s   Medicaid Expansion.” A Guide to the Supreme Court’s Decision on the ACA’s Medicaid Expansion, August 2012 – Brief (n.d.): n. pag. Kaiser Family Foundation. Kaiser Family Foundation, Aug. 2012. Web. 06 Nov. 2014.

Steinbrook, Robert. “Campaign Contributions, Lobbying, and the U.S. Health Sector — An Update.” Massachusetts Medical Society (2008): n. pag. Web. 07 Nov. 2014, accessed via Blackboard.

The Legality of a Short-Term Solution to the Long-Term Problem of Immigration

Sydney Winkler
COL ’16

There has been much controversy surrounding President Obama’s most recent executive action. It will expand the deferred program, also known as DACA, to parents of U.S. citizens and legal permanent residents. The program is poised to give temporary legal status to over 4.3 million illegal immigrants. While seemingly large in scope, one must also consider that the overall number of unauthorized immigrants is larger than in the past. Despite this fact, the vastness of the program has caused Congressional Republicans to ask whether the executive action is within the President’s jurisdiction. The left wing unsurprisingly disagrees and points to past presidential Administrations as examples of the justification of executive action. It is essential to determine what the President has the authority to do and what is outside of the executive branch’s power. After careful examination of the law, it is clear that the President is within his bounds by giving temporary legal status, not a path to citizenship, to parents of citizens in the U.S. or permanent residents.

Conditions of the Executive Action

President Obama signed an executive action on November 20, 2014 that will expand the deferred program to parents of immigrants who currently have legal status in the U.S.[1] Those eligible to apply for the new program must have arrived in the U.S. before 2010 and arrived in the U.S. under the age of 16, an expansion of the Deferred Action for Childhood Arrivals (DACA). Temporary legal status will also be granted to those who arrived in the U.S. before 2010 and have at least one child who is a U.S. citizens or legal resident, under the Deferred Action for Parents (DAP).[2] On a less publicized note, the Obama Administration also announced an expansion of legal immigration for skilled workers. This aspect could affect over 150,000 people moving to the U.S. to find work. Finally, the executive action also called for a revamping of the Secure Communities program, which uses local jails to enforce immigration laws and turn over undocumented immigrants to federal authorities. An important point to make about President Obama’s executive action is that does not propose granting legal status to unauthorized immigrants. In actuality, the president is giving them the opportunity to apply for deferred action, defined as protection from deportation for a certain amount of time, and this protection is only issued for three years.[3] Unauthorized immigrants who are given deferred action will only gain a work permit, not legal status or a path to citizenship.

Examination of the Immigration and Nationality Act of 1965

The Immigration and Nationality Act of 1965 governs over immigration to and citizenship of U.S. Citizens. This act amended the INA of 1952, abolishing the national origins question system. It was replaced with a preference system that focused on keeping together families and utilizing immigrants’ skills. The Immigration and Nationality Act of 1952 act defined three types of immigration: immigrants with special skills or relatives of U.S. citizens, average immigrations, and refugees.[4] Along these lines, it does not seem like too far of a stretch for the Obama Administration to justify deferred action for immigrants who are relatives of U.S. citizens and high-skilled immigrants. Since the executive action provides benefits for both groups, the Administration is also able to make the case for humanitarian reasons as well as economic reasons.

The Obama Administration’s Argument

In a 33-page memo, the Justice Department’s Office of Legal Counsel lines out President Obama’s authority in this matter. The crux of their argument falls on the idea of prosecutorial discretion.  It points out, “Since the INA was enacted, the Executive Branch has on numerous occasions exercised discretion to extend various forms of immigration relief to categories of aliens for humanitarian, foreign policy, and other reasons.”[5] The memo points the history of administrations that have also previously used executive action for immigration. For example, Jimmy Carter granted legal status to immigrants through the 1966 Cuban Adjustment Act. Furthermore, Ronald Reagan also signed the Immigration Reform and Control Act to grant amnesty to about 3 million unauthorized immigrants. Finally, George H. W. Bush granted deferral of deportation and eventually amnesty to 1.5 million immigrant children and spouses of U.S. citizens.

Furthermore, enforcement authority is vested in the executive branch. For example, the president has a constitutional duty “take care that the laws be faithfully executed.”[6] The Supreme Court case, Heckler v. Chaney, also recognizes that the faithful execution of the law does not necessarily entail acting “against each technical violation of the statute” that an agency is charged with enforcing.[7] This means that the president does not have to enforce every part of the law, within certain boundaries.

The memo argues that, if the president indeed does go past his authority, then “when Congress has been dissatisfied with Executive action, it has responded, as Chaney suggests, by enacting legislation to limit the Executive’s discretion in enforcing the immigration laws.”[8] The Heckler v. Chaney (1985) decision argued that initiating enforcement proceedings is complex and calls on the agency to balance “a number of factors which are peculiarly within its expertise.”[9] Factors include “whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency’s overall policies, and, indeed, whether the agency has enough resources to undertake the action at all.”[10] The memo argues that the principles of enforcement outlined in Chaney apply to immigration since Congress enacted the INA with the understanding that immigration is a field that demands flexibility due to the variable conditions of the program.

The memo also acknowledges that the President does not have the authority to “attempt to effectively rewrite the laws to match its policy preference.”[11] Furthermore, the sustainability of an immigration policy like such rests in the political arena and in the hands of Congress. It doesn’t fail to point out though that the Homeland Security Act of 2002 transferred administrative services and enforcement of immigration laws to the Department of Homeland Security in Section 430, Subtitle D.[12]

Argument from the Republican Side

While Congressional Republicans will acknowledge that past presidents have undertaken executive actions on immigrations, they argue that these actions were on a much smaller scale. Presidents, dating back to Dwight D. Eisenhower, have granted relief to immigrants who were vulnerable to deportation. For example, Eisenhower allowed hundred of foreign-born orphans to come to the U.S. with their adoptive parents, through an executive action in 1956.[13] Thus, while President Obama has a partial legal basis for the Administration’s action, the action has extended beyond his jurisdiction. Republicans, however, argue that those actions were on a much smaller scale. In late October, Republican National Committee chair Reince Preibus promised a lawsuit against the president if he were to take executive action.[14] Legal scholars are now saying that a lawsuit is unlikely, given the carefulness of the Department of Justice’s Office of Legal Counsel.

Conclusion

When it comes to immigration, the executive branch has a lot of authority to decide who to deport and who not to deport. As shown above, the Department of Homeland Security’s proposed prioritization policy and its proposed deferred action program for parents of U.S. citizens and lawful permanent residents would be legally permissible, given the president’s constitutional duty and the way the Supreme Court has ruled in the past. The proposal also aligns with previous action that Congress has taken and therefore is consistent with current immigration law and with congressional understandings of permissible uses of deferred action.  The DHS and Department of Justice’s Office of Legal Counsel also acknowledge that the proposed deferred action program for parents of DACA recipients would not be permissible, in order to be consistent with Congressional action and not leave deferred action open to any illegal alien. There are important limits to President Obama’s executive action that many should further examine. Overall, the proposal is a temporary executive answer to a problem that will eventually need long-term reform by the legislature in order to truly solve the problem.

Notes 

[1] U.S. Department of Justice, “The Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others” (Washington, D.C., 2014), 26

[2] http://www.uscis.gov/immigrationaction

[3] http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process/frequently-asked-questions

[4] http://www.nationalimmigrationlawyers.com/mccarran-walter-act.html

[5]Op. cit., U.S. Department of Justice, p 6

[6] U.S. Const. art. II, § 3

[7] Heckler v. Chaney, 470 U.S. 821, (1985).

[8]Id.

[9]Op. cit., Heckler v. Chaney

[10] Id.

[11]Op. cit., U.S. Department of Justice, p 6

[12] Homeland Security Act of 2002, Pub. L. No. 107-296, 107th Cong., 1st Sess. (November 25, 2002) LexisNexis Academic.

[13] http://www.presidency.ucsb.edu/ws/index.php?pid=10677

[14] http://www.cnn.com/2014/11/20/politics/republican-response-obama-immigration-speech/