Binding the Enforcers: The Administrative Law Struggle behind President Obama’s Immigration Actions

Binding the Enforcers: The Administrative Law Struggle behind President Obama’s Immigration Actions

Michael Kagan *

President Obama has made executive action and prosecutorial discretion his signature contributions to immigration policy. His aim has been to focus enforcement against immigrants caught at the border or with criminal records while easing the path toward integration for others.[1] These actions—a collection of policies that use discretion to improve the legal standing of millions of unauthorized immigrants or at least shield them from arrest and deportation—may benefit as many as 87% of the unauthorized immigrants in the United States.[2]

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* Associate Professor at the University of Nevada, Las Vegas, William S. Boyd School of Law. B.A., Northwestern University; J.D., University of Michigan Law School. This article benefited from insights and feedback from Jill E. Family, Hiroshi Motomura, and David Rubenstein. All errors are mine.

[1].    See generally Michael Kagan, A Taxonomy of Discretion: Refining the Legality Debate About Obama’s Executive Actions on Immigration, 92 Wash. U. L. Rev. 1083 (2015) (describing President Obama’s immigration policy reforms); Jerry Markon, Obama Administration Scales Back Deportations in Policy Shift, Wash. Post (July 2, 2015), https: // (discussing President Obama’s immigration policy shift toward integration).

[2].    Julia Preston, Most Undocumented Immigrants Will Stay Under Obama’s New Policies, Report Says, N.Y. Times (July 23, 2015), politics/most-undocumented-immigrants-will-stay-under-obamas-new-policies-report-says. html. The Obama Administration has made it clear that those people granted deferred action will also receive employment authorization, which, in addition to allowing a person to be legally employed, facilitates obtaining Social Security numbers and other benefits. See Frequently Asked Questions: DACA and Your Workplace Rights, Nat’l Immigration L. Ctr. (July 15, 2015), Beyond deferred action, President Obama’s Department of Homeland Security (“DHS”) has announced the criteria it uses to decide whether to prioritize non-citizens for deportation (or non-deportation), which has the potential to allow many unlawfully present immigrants to know in advance whether they are likely to be pursued by Immigration and Customs Enforcement (“ICE”), even if they are not formally granted deferred action. See Markon, supra note 1.




Binding the Enforcers: The Administrative Law Struggle behind President Obama’s Immigration Actions

Protest is Different

Jessica L. West *

Sometimes dramatic, sometimes mundane, acts of civil disobedience bring attention to issues that have recently included climate change, policing, and high school closings.[1] In the United States, we are surrounded by protest. The stories of these protests capture deep aspects of the human experience and our relationship to government power.[2] These stories often involve a confrontation between the protester and the law. Popular media is full of stories of protesters who have stepped over the law: the news article regarding a nun who served seven years in federal prison for pouring a vial of human blood on a Trident missile silo;[3] the movie about an environmental protester who broke up a federal lease auction;[4] the business journal report on the $20 million cost to the city of Baltimore for the police overtime and cleanup as a result of protests.[5]

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*   Associate Professor of Law, Vermont Law School. This article is dedicated to members of the generations on either side of me: my parents and my children. Vocal anti-war and civil rights activists, my parents’ activities etched into my young mind the power of protest. My children, Anaya West and Chloe West, themselves activists with a strong sense of justice, give me hope for the future.

[1].    See, e.g., Sarah Berger, Ferguson Protests Arrests: Cornel West, DeRay McKesson, Johnetta Elzie and Osagyefo Sekou Arrested In St. Louis, Int’l Bus. Times *Aug. 10, 2015, 4:29 PM),; Hal Burton, Shell Icebreaker Moves Out as Protesters in Portland Dangle From Bridge to Block It, Seattle Times (July 30, 2015, 7:27 AM),; Lauren Fitzpatrick, Dyett High School Supporters Arrested After City Hall Sit-In, Chi. Sun-Times (July 29, 2015, 11:02 AM), http://chicago.sun

[2].    See Andy Merrifield, The Enigma of Revolt: Militant Politics in a Post-Political Age, in The Post-Political and Its Discontents: Spaces of Depoliticisation, Spectres of Radical Politics 279, 290 (Japhy Wilson & Eric Swyngedouw eds., 2014) (“Perhaps it’s possible to draw up a list of ‘archetypes of dissent’ . . . that symbolise . . . some innate disposition to make trouble, to dissent and protest, to revolt against the structures of modern power . . . .”).

[3].    See Linda Stasi, Exclusive: 84-Year-Old Activist Nun Imprisoned in Brooklyn Jail Hellhole for Breaking into Nuclear Facility, Exposing Security Flaws, N.Y. Daily News (Jan. 19, 2015, 2:30 AM),

[4].    See About the Film, Bidder 70,!about/cee5 (last visited Dec. 1, 2015).

[5].    Yvonne Wenger, Unrest Will Cost City $20 Million, Officials Estimate, Baltimore Sun (May 26, 2015, 7:11 PM), /bs-md-ci-unrest-cost-20150526-story.html.

2015 Annual Survey: Bankruptcy Law

2015 Annual Survey: Bankruptcy Law

The Honorable Kevin R. Huennekens *

Nathan Kramer **

This survey of bankruptcy and insolvency case law is the third installment in this series, which was initiated in 2009[1] following Congress’s enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act (“BAPCPA”) in 2005.[2] The previous version of this article was published in 2012,[3] not long after the Supreme Court’s 2011 ruling in Stern v. Marshall, which restricted the authority of bankruptcy courts to issue final judgments on issues arising under state law.[4] As was noted in the 2012 installment, “[t]he full impact of Stern both nationally and in the Fourth Circuit remains to be seen.”[5] There has been a significant amount of development concerning Stern claims both nationally and within the Fourth Circuit in the past three years.[6] It is fitting that this installment should come on the heels of the Supreme Court’s decision in Wellness International Network, Ltd. v. Sharif, which has resolved many of the issues posed by Stern, at least for the time being.[7] More generally, the Supreme Court has decided an abnormally large number of bankruptcy cases in the past few years.

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*    Judge, United States Bankruptcy Court, Eastern District of Virginia, Richmond, Virginia. J.D., 1978, Marshall-Wythe School of Law at the College of William & Mary; B.A., 1975, College of William & Mary.

**   Associate, Hunton & Williams LLP, Richmond, Virginia. J.D., 2014, University of Richmond School of Law; B.A., 2011, Marywood University. Former Law Clerk to the Honorable Kevin R. Huennekens, United States Bankruptcy Court, Eastern District of Virginia, Richmond, Virginia, 2014–15.

        [1].    Hon. Douglas O. Tice, Jr., Suzanne E. Wade & K. Elizabeth Sieg, Annual Survey of Virginia Law: Bankruptcy Law, 44 U. Rich. L. Rev. 201 (2009).

        [2].    Pub. L. No. 109-8, 119 Stat. 23 (2005) (codified as amended in scattered sections of 11 U.S.C.).

        [3].    Hon. Douglas O. Tice, Jr., K. Elizabeth Sieg & David W. Gaffey, Annual Survey of Virginia Law: Bankruptcy Law, 47 U. Rich. L. Rev. 51 (2012).

        [4].    131 S. Ct. 2594, 2620 (2011).

        [5].    Tice, Sieg & Gaffey, supra note 3, at 51.

        [6].    “‘Stern claims’ are those claims designated core claims by the Bankruptcy Statute, but prohibited from final resolution by bankruptcy courts as a constitutional matter by Stern.” Shaunna D. Jones & Paul V. Shalhoub, Supreme Court Provides Guidance to Bankruptcy Courts in Addressing “Stern Claims” and Holds That “Stern Claims” May Proceed as Non-Core Claims, Willkie Farr & Gallagher LLP 2 (June 18, 2014), http:// _to_Bankruptcy_Courts_in_Addressing_Stern_Claims.pdf.

        [7].    135 S. Ct. 1932 (2015).


2015 Annual Survey: Bankruptcy Law

2015 Annual Survey: Civil Practice and Procedure

John R. Walk *

Jaime B. Wisegarver **

This article surveys recent significant developments in Virginia civil practice and procedure. The article discusses opinions of the Supreme Court of Virginia from June 2014 through June 2015 addressing noteworthy civil procedure topics, amendments to the Rules of the Supreme Court of Virginia concerning procedural issues during the same period, and legislation enacted by the Virginia General Assembly during its 2015 session that relates to civil practice.

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* Shareholder, Hirschler Fleischer, P.C., Richmond, Virginia. J.D., 1980, University of Richmond School of Law; B.A., 1977, College of William & Mary.

** Associate, Hirschler Fleischer, P.C., Richmond, Virginia. J.D., 2010, University of Richmond School of Law; B.A., 2005, University of Virginia.

2015 Annual Survey: Bankruptcy Law

2015 Annual Survey: Criminal Law and Procedure

Aaron J. Campbell *

This article surveys developments in Virginia criminal law and procedure from June 2014 through June 2015. Of the many judicial opinions and legislative enactments, the author has endeavored to select those with the most impact on the practice of criminal law in Virginia.

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*   Assistant Attorney General, Criminal Appeals Section, Office of the Attorney General, Commonwealth of Virginia. J.D., 2009, University of Richmond School of Law; B.A., 2002, Concord University.

2015 Annual Survey: Bankruptcy Law

2015 Annual Survey: Election Law and Government Ethics

Christopher R. Nolen *

Jeffrey S. Palmore **

While the 2014–2015 period brought relatively modest changes to election law, it saw substantial changes in Virginia’s ethics laws for legislators, other public officials, and lobbyists. This article surveys developments in Virginia election and government ethics laws for 2014 and 2015, with an emphasis on legislative developments. The focus is on those statutory developments that have significance or general applicability to the implementation of Virginia’s election and ethics laws. Consequently, not every election-related bill approved by the General Assembly is discussed.

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    *    Partner, McGuireWoods LLP, Richmond, Virginia. J.D., 1999, George Mason University School of Law; B.A., 1992, Virginia Polytechnic Institute & State University.

             **   Associate, Reed Smith LLP, Richmond, Virginia. J.D., 2009, Marshall-Wythe School of Law, College of William & Mary; B.A., 2000, College of William & Mary.