PUBLISHED:December 10, 2014

Schroeder testifies before Senate Judiciary Committee regarding executive action on immigration

Professor Christopher H. Schroeder testified before the Senate Judiciary Committee on Dec. 9, regarding President Barack Obama’s recent executive action on immigration.

Schroeder, the Charles S. Murphy Professor of Law and Public Policy Studies, spoke in a hearing titled, “Keeping Families Together: The President’s Executive Action on Immigration and the Need to Pass Comprehensive Reform,” where he addressed the legality of the policies announced Nov. 20 by Secretary of the Department of Homeland Security (DHS) Jeh Johnson that provide the possibility of deferred action and work authorization for undocumented aliens who meet specific criteria.

A veteran executive branch lawyer who teaches and writes in the areas of presidential authority and the separation of powers, Schroeder broke down the three-step legal analysis contained in an Office of Legal Counsel (OLC) memorandum that supported the DHS policies. “…[I]t ultimately falls to the current administration to pursue a course that conforms with its understanding of wise policy – so long as it stays within the limits of the authorities enacted by the Congress,” Schroeder wrote in testimony submitted to the committee. “In my opinion, the OLC Opinion supports the conclusion that the Johnson Memorandum meets that standard.”

Schroeder went on to state that “deferred action is not amnesty, it does not confer legal status, it does not remove these individual’s eligibility to deportation, it only defers it. The deferral can be revoked. Adjusting the immigration laws to provide legal status for these individuals is indeed something only the Congress can do.” Congress can revise immigration laws and DHS actions, he added. “Nothing in the deferred action policies runs around or tries to avoid that constitutional truth.”

A scholar of constitutional and environmental law and regulation, Schroeder has deep experience in the Executive Branch, most recently serving as assistant attorney general for the Office of Legal Policy at the U.S. Department of Justice. Much of his current scholarship and research concentrates on questions of presidential authority. Last February he testified before the House Judiciary Committee on the president’s constitutional duty to execute laws.

Schroeder returned to the Duke Law faculty in 2012 after serving for nearly three years as assistant attorney general in the Office of Legal Policy, where he supervised the evaluation of President Obama’s nominees to the federal judiciary and provided policy advice to the attorney general and the White House on a variety of law enforcement and national security issues. He has also served as acting assistant attorney general in the Office of Legal Counsel where he was responsible for legal advice to the attorney general and the president on a broad range of legal issues, including separation of powers, other constitutional issues, and matters of statutory interpretation and administrative law. He earlier served as chief counsel to the Senate Judiciary Committee. At Duke Law School, Schroeder co-directs the Program in Public Law.

Read Schroeder's full written testimony.