The Rule of Memo

Turn now to the President’s “executive action” on immigration. What did he do?

According to a wide variety of media sources, the President issued an executive order. Maria Cardona, political commentator for CNN (11/21/14): “Through an executive order the President intends to grant up to 5 million undocumented immigrants relief from deportation.” The Boston Globe (11/21/14): “Who Wins, Loses with Obama’s Immigration Executive Orders.” Huffington Post (11/24/14): “Obama Defends Immigration Executive Order.” Washington Post (11/19/14): “Here’s who President Obama’s Executive Order on Immigration Could Help.” Fox News (11/21/14): “President Obama officially unveiled his new Executive Order.”

Wow. Some executive order. Except there isn’t one. Check the White House web site under the section “Presidential Actions.” screen capture 11/25/14

The most recent executive order is one from October 17, on consumer financial transactions. What the President signed on Friday, November 21 were two memoranda, setting up a task force and directing government officials to recommend improvements in the immigration system.

Is it possible that significant changes in immigration law and policy are being implemented by memo? Seems like it. Department of Homeland Security Secretary Jeh Johnson signed 11 memos on November 20, directing an expanded program of “deferred action” for certain classes of illegal aliens; ending the Secure Communities program to remove criminal aliens; expanding waiver programs and making many other changes.

“Our view is the outcome is more important than the process,” said White House Communications Director Jennifer Palmieri (Washington Post, 11/1514)

If everyone takes that view, or is complacent in the face of it, what happens to the rule of law? Superseded by the rule of memo?

I may be the only person in America waiting for the country’s law librarians to rise up in defense of the law. The members of that profession seem to be among the few who recognize the chaos in federal law and federal lawmaking.

The President’s earlier descent into legal chaos was the Affordable Care Act (HR 3590) and its fixer-up cousin, the Health Care and Education Reconciliation Act (HR 4872). John Cannan, a law librarian at Drexel University describes in careful detail the tortured process leading to the passage of those two bills in “A Legislative History of the Affordable Care Act,” Law Library Journal, Vol. 105:2 [2013-7].

Mr. Cannan notes that “ad hoc” legislating has replaced the “I’m Just a Bill” legislative process described in the “Schoolhouse Rock” cartoon (famously parodied by Saturday Night Live here). Gone are committee reports describing the bill.  Bill language is drafted by leadership outside the committee markup process, behind closed doors. Entirely new bills never referred to committee are brought directly to the floor. “Self-executing” House rules make substantive changes to a bill without votes on those provisions. Substitute amendments re-writing the entire bill pop up at the last minute. The conference committee process is abandoned.

Mr. Cannan, with professional calm, notes that the ad hoc process presents new challenges for understanding the legislative process. I would put it differently. All of us in Gruber-land are left defenseless, unable to figure out what Congress is doing before it acts and afterwards bombarded by surprises in the law, surfacing like hidden drums in a toxic waste dump.

And just when you thought it couldn’t get any worse, the President adds a new wrinkle to the legislative process, the memo.

A bill enacted by Congress and signed by the President becomes law. The text, however convoluted, is available on a permanent basis from widely available public sources. An executive order has the force of law. The Office of the Federal Register assigns it a number and publishes it. There is a permanent record; a place to go to find it. None of this applies to the memo. The memo is here today and gone tomorrow; once on an Internet site and then no longer available, as are all the fact sheets, talking points and press releases. All the existing tools, as imperfect as they are, to find the law and to understand the law do not apply to the memo.

The wisdom of these policies, whether the President exceeded his authority or not, will be debated and decided in the months ahead. But to move forward in this way, on such an important matter, strikes me as an arrogant act of disrespect, of Congress for sure, but more importantly, of us.