Beyond Legality: The Legitimacy of Executive Action in Immigration Law

Recent uses of executive action in immigration law have triggered accusations that the President is acting imperially, like a king, or as a lawbreaker. President Obama’s Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parental Accountability (DAPA) programs, which provide protection from deportation and a work permit during a temporary period of lawful presence, serve as the lightning rod for these accusations. But even as legislative and litigation challenges to DACA proceed, many states appear to accept and comply with it, including nearly all of the states that have joined the Texas v United States lawsuit that challenges the President’s legal authority for these actions (S.D. Texas order filed Feb. 16, 2015). How can the high-level legal resistance and on-the-ground acceptance be understood? This Article claims that the controversy is better understood as a fight about legitimacy than a fight about legality. It reframes the discourse around a concept of legitimacy that emphasizes public acceptance of the policy on the basis of perceived institutional authority. Based on an empirical examination of how and where DACA has gained acceptance, it shows that individual and state actors base their actions on perceptions that the institutions that enacted DACA are worthy of trust and merit their cooperation. For this reason, legitimacy is a more productive way of analyzing DACA’s success or failure than the legal analysis in the current lawsuits. The Article makes two key contributions to scholarship on executive action in immigration law. First, it offers a theoretical frame for analyzing DACA’s legitimacy in a manner that is truer to the underlying controversy than the frame of current challenges. This framework will endure long after the lawsuits resolve. Second, it describes the puzzling disjuncture between the lawsuits and the broad acceptance on-the ground from the vantage point of individuals and states whose legitimacy perceptions — warranted or not — will shape the opportunities for undocumented immigrants in many spheres of life. Doing so exposes public attitudes toward executive action that will determine the degree of cooperation with DACA, and it also generates insights about what the Obama Administration and future administrations can do to either build, or undermine, the legitimacy of the executive action and institutions that sustain it