The OTHER 2002 Jay Bybee Opinion

The WaPo reports that the Obama Administration might be impeded from filing a suit against the AZ anti-immigrant law because of a 2002 Jay Bybee Memo holding that local police have the authority to detain people for both civil and criminal violations of Federal immigration law. It pitches the story as the Obama Administration being constrained by a Bush Administration reversal of a Clinton Administration position.

In the legal battle over Arizona’s new immigration law, an ironic subtext has emerged: whether a Bush-era legal opinion complicates a potential Obama administration lawsuit against Arizona.


The 2002 opinion, known as the “inherent authority” memo, reversed a 1996 Office of Legal Counsel opinion from the Clinton administration. “This Office’s 1996 advice that federal law precludes state police from arresting aliens on the basis of civil deportability was mistaken,” says the 2002 memo, which was released publicly in redacted form in 2005 after civil rights groups sued to obtain it.

Though that doesn’t account for the fact that the 2002 opinion not only explicitly reverses that 1996 memo, but also dismissed doubts raised in 1989 in an OLC memo authored by Douglas Kmiec.

Indeed, the only contrary suggestion [as to whether local police can enforce federal statutes] of which we are aware is contained in a footnote in a 1989 opinion of this Office. In that footnote, after stating that “it is not clear under current law that local police may enforce non-criminal federal statutes” and tbat any exercise of authority granted under state law “would necessarily have to be consistent with federal authority” we opined that “unlike the authorization for state and local involvement in federal criminal law enforcement, we know of no similar authorization in the in the non-criminal context.” Memorandum for Joseph R. Davis, Assistant Director, Federal Bureau of Investigation, from Douglas W. Kmiec, Assistant Attorney GeneraI, Office of Legal Counsel, Re: Handling of INS Warrants of Deportation in relation to NCIC Wanted Person File at 4 & n.11 (Apr. 11. 1989) (“1989 OLC Opinion”) (emphasis added).

Why does Poppy Bush hate W?

In any case, the WaPo’s discussion does ignore Eric Holder’s suggestion in an exchange with Judy Chu last week (from around 2:54:40 to 2:56:25) that DOJ is considering the 2002 OLC opinion in its larger review of the Arizona law.

REP. CHU: Well, in 1996, the Office of Legal Counsel concluded that the state and local police lacked legal authority to detain individuals solely on the suspicion of being in the country illegally; however, in 2002, Assistant Attorney General Jay Bybee, issued an Office of Legal Counsel memorandum concluding that federal law did not preempt state police from arresting aliens on the basis of civil deportability.

Have you officially asked the Office of Legal Counsel to review this policy?

MR. HOLDER: Not as yet, but the part — as we go through our review, one of the things that has to be taken into account is the 2002 opinion that you referenced, its continued viability, whether it is a correct assessment of the law, that is all a part of what our review team will be — is in fact, looking at.

REP. CHU: Well, why would you keep that 2002 opinion enforced while it is under review, if it is under review? Especially given the widespread opposition and civil liberties complaints.

MR. HOLDER: Well, I don’t think, as I said, it’s going to take us a — an extended period of time to decide what action we are going to take. But before we decide to take any action, I think we need to understand this statute in its totality, the impact that it will have, understand and take into account what policies the federal government has put in place including OLC opinions, the history that is involved in all of this. There is a wide variety of things that go into the determination that ultimately we will have to make. And I want to make sure that we take as comprehensive a look as we can before we make what I think is going to be a very consequential decision. [my emphasis]

Aside from all that, I’m rather interested in the redacted portions of the 2002 memo. OLC fought pretty hard to hide what appear to be the underlying reasons to push this expansive local authority for police to arrest suspected undocumented immigrants. Why?

49 replies
  1. fatster says:

    Many thanks for this, EW. Interesting that a DOJ review of the 2002 opinion “. . . it’s going to take us a — an extended period of time to decide what action we are going to take.” So, looking backward seems to require the slo-mo approach.

    • skdadl says:

      C’mon, fatster. He needs to understand it in its totality. The impact, the history, the wide variety, the comprehensiveness, before he goes all ultimate and consequential.

  2. bmaz says:

    Well, it is awfully inconsistent with the way the federal government has insisted state and local law enforcement operate only under 287 g memorandums of authority in enforcing immigration laws. So the practice of the Feds has still been arguably more consistent with the Clinton era position.

    • fatster says:

      Did you see Kagan’s responses on the questionnaire? I linked to it on the “Nine Years . . . ” article. I was hoping you lawyers would rip into it.

  3. MadDog says:

    …Aside from all that, I’m rather interested in the redacted portions of the 2002 memo. OLC fought pretty hard to hide what appear to be the underlying reasons to push this expansive local authority for police to arrest suspected undocumented immigrants. Why?

    Yeah, why?

    6 months after 9/11, so perhaps the motivation was to stealthily “federalize” state and local law enforcement as formal resources in GWOT without an official and public delegation of such authority by AG Ashcroft.

    Particularly with respect to the detaining of “suspicious” folks without probable cause other than their racial, cultural or ethnic identity.

    And profiling in such ways at the local or state level might avoid the scrutiny that the same profiling at the federal level would incur.

    Just stream of conciousness here. *g*

    • MadDog says:

      Continuing on with the redaction strangeness, just who was the requestor for this OLC opinion?

      Why would that be redacted?

      And the cover letter has an interesting tidbit as well:

      …The document has been redacted consistent with the district court’s opinion…

      WTF does that mean?

      • emptywheel says:

        The District Court actually reviewed a bunch of stuff in the govt’s Vaughn Index on this FOIA, and determined that this opinion had to be released except for the redactions. The govt appealed, but lost.

    • Hmmm says:

      I dunno… super-sekrit plan to annex Mexico & Canada for Lebensraum and throw all them pesky Mexicans and Canadians in the pokey since they’d be immigrants in America then…?

    • emptywheel says:

      Pretty similar to my stream of consciousness.

      PACER doesn’t work great that far back. But ACLU et al had to appeal their FOIA to get that opinion released.

    • MadDog says:

      The Piper calls the tune.

      When it comes down to it, Congress, and in particular the Senate, won’t cut the campaign donation bonds to their primary financial backers.

      Money talks and bullshit walks!

  4. bobschacht says:

    In your second block quote, I find this:

    …authorization in the in the non-crimmal context.

    Is “crimmal” in the original?

    Also, in the department of irony, Olbermann notes tonight that the effect of the Arizona immigrant law may actually (a) increase the number of illegal immigrants in Arizona, and (b) provide an accelerated(?) path to citizenship for the same.

    Karma can be a bitch.

    Bob in AZ

      • bobschacht says:

        Watch the Olbermann clip, which I can’t find online yet. It’s got to do with
        (a) overcrowding in AZ jails (he didn’t mention Arpaio’s tent cities)
        (b) release pending resolution policies, even for ICE.

        I did not take notes, so I can’t offer a coherent summary.

        Bob in AZ

          • R.H. Green says:

            Completely OT. Just saw your question about McCain’s sign in Tucson. It looks like an ordinary campaign sign. If its guerrilla theater, its damn good, but it looks like the real deal, maybe leftover from the Palin campaign. Perhaps its been there a month and no-one at local headquarters “connected the dots”. Maybe they’re all over the state (he-he).

            • bmaz says:

              Yeah, see, I think it is wrong that it will put more on the streets, but it may make more who were on the streets legal, at least temporarily while pending disposition hearings. what is being described really affects status more than actual total numbers. Add onto that fact many illegal immigrants will leave because of the hostility here (there already has been some effect in that regard it appears) and I just cannot see the claim it will add to the “number of illegal immigrants on the street”.

              • bobschacht says:

                it may make more who were on the streets legal, at least temporarily while pending disposition hearings.

                That was really the part that intrigued me the most. One of the things that bums me the most about this whole immigration debate is that it is so friggin’ difficult for many applicants to become citizens. What I hear is that people come here legally on temporary visas, and apply for citizenship, but the process is so friggin’ slow that their visas expire before their application is acted on. Arizona’s new law may be racist and unConstitutional, but isn’t the slow action on citizenship applications just as racist and disheartening? What is behind this slow action? Why isn’t the Obama administration expediting these applications?

                Bob in AZ

                • bmaz says:

                  Quotas too low, and even at that they only apply to those who apply from Mexico – effectively very little eligibility for those already here illegally. And those that get this temporary legalization will lose it once adjudicated and likely will never be deemed eligible for the traditional immigration process because of the prior deportation.

                  • bobschacht says:

                    Quotas too low, and even at that they only apply to those who apply from Mexico – effectively very little eligibility for those already here illegally.

                    Who sets the quotas?
                    And what about those who come, legally, with temporary visas (green cards or student visas), and apply for citizenship? I should think that if they get jobs, pay taxes, etc. that they should be prime candidates for citizenship.

                    Or is the whole citizenship process currently staffed with BushCo stay-behinds who don’t like the idea of scary brown people becoming citizens and voting for Democrats?

                    Bob in AZ

                    • bmaz says:

                      I am not certain, but I think Congress sets the overall level with some discretion in ICE to adjust among the counties they come from. That seems supported by a quick Google. Good question.

    • fatster says:

      I like “crimmal”. It sounds like that large gray zone, where so many now swim, that murky mess in-between “criminal” and “legal.”

  5. prostratedragon says:

    OLC fought pretty hard to hide what appear to be the underlying reasons to push this expansive local authority for police to arrest suspected undocumented immigrants. Why?

    Gosh, I don’t know why that gang felt they had to hide anything at all, but anyone thinking that there was some kind of federal agenda vis a vis local authority during that admin could have found plenty of support in the Katrina response botch a couple of years later.

    The quickest thing that comes into my hand (I’m still coughing from the dust on those bookmarks) is a Frontline interview with Mayor Nagin, who on this question of authority dares us to name that thing upon the tip of which he is dancing so energetically.

    The meat begins with the question “Were you dealing with [FEMA Director Michael] Brown in those first few days?” and continues through to the end of the meeting on Air Force One when Nagin says he perceived a sort of power struggle going on. Such communication between DC and BaRge as one could find online at the time (got to think WH did not have their ducks in a row in time for this one) makes the same suggestion even funkier.

  6. MadDog says:

    More stream of conciousness – while checking the listed OLC opinions for 2002, this one (6 page PDF) by Yoo-Who? caught my eye as to both the timing and content of the opinion:


    …In general, the President may not transfer the functions of an agency statutorily created within one Cabinet department to another Cabinet department without an act of Congress.

    The President may not delegate his presidential authority to supervise and control the executive departments to a particular member of the Cabinet where no statutory authority exists to do so.

    The President may exercise his own power to establish a comprehensive border control policy for the federal Government and direct a single Cabinet member to lead and coordinate the efforts of all Cabinet agencies to implement that policy.

    March 20, 2002

    Yoo-Who? says nope, can’t do it, and then Bybee comes along and says yup, here’s how.

      • MadDog says:

        Though Sestak ain’t no progressive, I’d hazard a guess that he’s not the backstabbing, lying SOB that the lapsed Repug Specter is.

          • emptywheel says:

            I am surprisingly sad by the modern tragedy that is Arlen Specter. Not least because this generation’s tragedies won’t make very good theater.

            • bmaz says:

              You know, I think there really did exist a decent man and one that may have had surprisingly good positions on important issues down deep in Specter; it is a shame that corpus remained generally buried with only repressed glimpses popping out every now and then. I wonder what he was really like long ago? I dunno who the real Arlen is. Maybe it is indeed the conflicted duality that rightfully got him cast aside by both parties in the end. Maybe I am a fool, but I do actually have a touch of sadness for the old dude.

  7. MadDog says:

    Would still be nice to find out who exactly requested this opinion. The fact that even that is redacted is more than curious.

  8. freepatriot says:

    it’s still a chance to SING

    (pardon me while I whip this out)

    this one’s for arlen magic bullet Scottish haggis scrapple specter





    and don’t come back

    I forgot that last part once, and we’re stuck with lieberscum for three more years …

    we now return you to your regularly scheduled blog post

    • PJEvans says:

      Well, with luck, we won’t get unHoly Joe back again, either. Maybe he’ll decide to ‘retire’ early.

      • bobschacht says:

        Unfortunately, by the time he has to run again, the electoral climate will be totally different. I think we’re stuck with him for what, 4 more years?

        Bob in AZ

  9. earlofhuntingdon says:

    State law enforcement may have concurrent authority to detain and arrest on suspected violations of federal immigration laws. It’s hard to see how that authority would trump federal law enforcement’s authority or the fed’s assertion of superior jurisdiction generally or on a case by case basis. Federalism concerns didn’t make federal banking authorities hesitate to assertion such jurisdiction over regulating banks, or the feds asserting they have precedence over state environmental laws.

    This meme does smack of Obama looking for another reason not to do anything in the face of right wing radicalism. Gosh by golly, someone on the right might scream and clutch their pearls; the gentlemanly Mr. Obama could not allow himself to be the cause of that.

    • PJEvans says:

      He clearly thinks that we won’t clutch pearls and faint, no matter how much we scream.
      On the other hand, he also seems to think – or Rahm does – that we’ll vote for whoever he wants, regardless of how good they actually are.

      • earlofhuntingdon says:

        It’s the right wing pearl clutchers Mr. O seems concerned about. The rational left he ignores or uses as bait.

  10. klynn says:

    Can somebody tell me why the discussion about killing social security is allowed to be carried out behind closed doors? Did I miss something? Haven’t tax payers been paying into SS with the understanding of a return on their $$$?

    Thus, this kind of discussion needs to be very open and transparent. Open the door ELECTED officials.

  11. timbo says:

    Well, under that theory, couldn’t Vermont arrest Dick Cheney for war crimes? Actually, I’m beginning to like that memo…even if the logic of it is cheese riddled.

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