Fowler Faculty Before Congress & the Press on the President’s Executive Action on Immigration

February 11, 2015

At the forefront – and on multiple sides – of the legal debates in the recent news over immigration law and policy, observers will find the scholarly work and legal analyses of several Chapman University Dale E. Fowler School of Law professors. We highlight below some of the most recent legal opinions of these scholars in the aftermath of the latest executive action on immigration by President Obama, along with some of their other recent work on immigration issues. The breadth of ideological diversity on the Fowler School of Law faculty is strong, and the recent debate on immigration provides just one representative example.

rotunda-us-house-of-reps-testimony
Professor Ronald Rotunda
testified before the United States House of Representatives Judiciary Committee
hearing on Tuesday, December 2, 2014. The Chairman of the Committee formally invited Professor Rotunda to testify at this hearing. “[T]he issue is not whether one agrees with the President’s goals. (In fact, I share his goals.) The issue is whether it is constitutional for the President, unilaterally, to rewrite our immigration laws and change the status of about 5 million people. The President’s executive power does not give him the power to govern by decree. Congress does not fail when it refuses to enact a presidential proposal.” (
View full prepared testimony.
) Professor Rotunda also wrote “
The President’s Power to Waive the Immigration Laws
” in the Verdict section of
Justia.com
on January 12, 2015.

Professor Ernesto Hernandez wrote “
Inmigración: la Acción Ejecutiva es legal
” in
Hoy Los Angeles
on November 19, 2014, where he explained (in Spanish) that “What the President promises to implement is undoubtedly legal and approved by the Supreme Court and used by various prior Presidents . . . [and] [t]he Immigration and Nationality Act, amended frequently by Congress, refers to executive discretion, its application to protect non-citizens, and the importance of executive decisions.” Professor Hernandez also authored, “
Ataques errados a la acción de Obama
” in
La Opinión
on November 21, 2014, where he articulated (again, in Spanish) the reasons why “A detailed examination demonstrates that President Obama’s action is legal, invites congressional support and supports security. All things that critics demand.” And he concluded that “Immigration laws . . . authorize discretion in the application and issuing of work authorizations. Critics overlook these details of the plan, past practice, court precedents, and laws passed by Congress.”

eastman-judiciary-comm-testimony
Professor John Eastman
testified before the United States Senate Committee on the Judiciary
hearing on Wednesday, December 10, 2014. The Judiciary Committee minority members requested that Dr. Eastman be invited to testify because of his nationally-recognized expertise on the Constitution’s core separation of powers principles. “[T]he Constitution could not be more clear. Absent some extraordinary foreign policy crisis that would trigger the President’s direct Article II powers over foreign affairs, the Constitution assigns plenary power over immigration and naturalization to the Congress, not to the President. . . [The President] has taken it upon himself to drastically re-write our immigration policy, the terms of which, by constitutional design, are expressly set by the Congress.” (
View full prepared testimony.
) Professor Eastman also wrote “
Did Congress Really Give the Secretary of Homeland Security Unfettered Discretion Back in 1986 to Confer Legal Immigrant Status on Whomever He Wishes?
” in
Engage
, The Journal of Federalist Society Practice Groups (Volume 15, Issue 3, 2015).

Dean Tom Campbell wrote an op-ed in the
Orange County Register
, entitled “
Obama Just Using the Immigration Power Congress Gave Him
” on November 26, 2014. In the article, Dean Campbell said, “The power of the president has grown in recent years because Congress has allowed it to grow. Instead of stating with specificity what categories of inadmissible aliens could stay and receive work permits, Congress gave that power in 1986 to the president’s appointed attorney general – seemingly without constraints. It’s hard for Congress to complain now if a president uses that power.”

cianciarulo-georgetown-cover-feature-2
Prior to the most recent executive actions on immigration, Professor Marisa S. Cianciarulo – in her article “
Unauthorized Americans and European Outcasts
,” 27
Georgetown Immigration Law Journal
519 (2013) – recently analyzed the effects of anti-immigration policies concluding that “Decades and generations of being exposed to the conflicting experience of social integration on the one hand and legal rejection on the other may create the tensions that occur in severely marginalized groups.” Professor Cianciarulo also concluded in another recent article that, “the Constitution mandates that several discrete powers be reserved to the federal government . . . Allowing states to meddle in the complicated and difficult issue of unauthorized immigration is likely to doom any chance of fair and comprehensive immigration policy for the United States in the foreseeable future.” See “
The ‘Arizonification’ of Immigration Law: Implications of Chamber of Commerce v. Whiting for State and Local Immigration Legislation
,” 15
Harvard Latino Law Review
85 (2012).

About the faculty

Ronald Rotunda

is the Doy and Dee Henley Chair and Distinguished Professor of Jurisprudence at the Fowler School of Law.
View his articles and books on constitutional law
.

John Eastman

is the Henry Salvatori Professor of Law and Community Service and the Founding Director of the Claremont Institute’s Center for Constitutional Jurisprudence, which sponsors the Constitutional Jurisprudence Clinic at the Fowler School of Law. In addition to recent publications, Professor Eastman wrote “
Papers, Please: Does the Constitution Permit the States a Role in Immigration Enforcement
,” 35
Harvard Journal of Law & Public Policy
1 (2012) and “The States Enter the Illegal Immigration Fray,” in Carissa Byrne Hessick and Gabriel J. Chin, eds.,
Strange Neighbors: The Role of States in Immigration Policy
,
New York University Press
(2013).

Ernesto Hernandez

is a professor of law at the Fowler School of Law. In addition to his recent articles, Professor Hernandez also wrote “
Kiyemba, Guantánamo, and Immigration Law: An Extraterritorial Constitution in a Plenary Power World
,” 2
UC Irvine Law Rev.
194-245 (2012).

campbell-best-portrait-for-email-100-x-150
Dean Tom Campbell
is the Donald P. Kennedy Chair in Law and Professor of Economics. Dean Campbell was a member of the United States Congress from 1989-1993 and 1995-2001; and a member of the California State Senate from 1993-1995. In addition to his recent articles, he wrote
Separation of Powers in Practice
,
Stanford University Press
(2004).