Obama’s Executive Action, The Law, And The Constitution
On a preliminary examination, the President's executive action on immigration appears to be within the boundaries of applicable law. However, as with other exercises of Executive Branch authority, it raises some important concerns about the precedent that it sets.
As James Joyner has already touched upon, almost immediately upon the conclusion of the President’s immigration policy address last night, the debate on the legality and propriety of the what he was proposing began. Indeed, as I have noted in posts since shortly after the midterms, that debate had already begun well beforehand. On its face, the debate is really a three-fold one that implicates the specific immigration laws under which the Executive Branch is claiming to have the legal authority to act, the general Constitutional principles of Separation of Powers that give the authority to make law to Congress and the authority to enforce that law to the Executive Branch, and finally the more political question of what the appropriate balance between two co-equal branches of government ought to be regardless of what the law says. One of the first things to note is that President Obama’s actions are not at all unprecedented. Both the previously announced Deferred Action for Childhood Arrivals and actions that were taken by predecessors such as President Eisenhower, President Reagan and President George H.W. Bush are strikingly similar in substance to what the President announced last night, for example. One main difference is that none of those programs were as wide ranging as the President’s program in terms of the number of people that would be impacted, but this fact alone is not per se an argument against the legality of the program. If it is within Presidential discretion, then it doesn’t really matter if the decision impacts 50,000 or 5,000,000 people, at least not as far as the law is concerned, although there is obviously an added political dimension to a larger scale program. In the memorandum that was drafted for the President and his advisers by the Justice Department’s Office of Legal Counsel, which I’ve embedded below, staff attorneys at the DOJ have concluded that the actions which the President announced last night are largely within the President’s discretionary authority and the authority granted by the Executive Branch, and preliminary analysis by legal scholars on both sides of the political aisle seem to largely be in agreement, something with suggests that legal challenges to the action, assuming they could get past the inevitable standing problems, would likely not be successful.
On the left, Walter Dellinger argues that there’s nothing at all controversial about the President’s actions here, and that it is rather obvious that the President, via the Department of Homeland Security, has been granted wide discretion in this area:
The fundamental fact is this: There are 11.3 million people in the United States who, for one reason or another, are deportable. The largest number that can be deported in any year under the resources provided by Congress is somewhere around 400,000. Congress has recognized this and in 6 U.S.C. 202 (5) it has directed the secretary of homeland security to establish “national immigration enforcement policies and priorities.” In the action announced tonight, the secretary has done just that, and the president has approved.
In cases such as Heckler v. Chaney (1985), the Supreme Court has repeatedly emphasized that where Congress has not provided guidelines for executive enforcement, the determination of enforcement priorities is within the “special province of the Executive.” This is especially clear in the area of immigration. As the court recently noted in Arizona v. United States (2012), some of the discretionary deportation decisions the executive makes are appropriately based on general policy considerations, such as concerns implicating foreign affairs.*
The president is not acting contrary to any statutory mandate. Nothing in the president’s action sets a precedent for unbridled executive action (as Marty Lederman sets out in a post for Balkinization). To note one example, although a president can cut back on enforcement of tax laws, no president can relieve any one American of a statutory obligation to pay taxes. The next president can come collecting—and interest and penalties will be accruing until he or she does.
In this case, the full amount of funds for deportation will continue to be spent in accord with enforcement priorities set by Homeland Security that are fully within the discretion conferred by acts of Congress. The scope of the relief is comparable to that granted without significant controversy by the first President Bush to 1.5 million undocumented aliens. In light of how legally conservative the opinion really is, it is a wonder that this issue has become the subject of such heated, occasionally apocalyptic commentary in the days leading up to Thursday night’s announcement.
In addition to people like Dellinger and Lederman, though, legal scholars on the right also seem to agree that what the President announced here is well within the discretionary authority granted to the Executive Branch under laws passed by Congress. University of Chicago Law School Professor Eric Posner, for example, largely agrees with Dellinger that there is clear authority in the law for the Executive Branch to defer millions of deportations on a temporary basis, both under the specific laws that authorize those deportations to begin with and under general principles of prosecutorial discretion. Over at The Volokh Conspiracy, George Mason University Law School Professor Ilya Somin reaches much the same conclusion:
Article II of the Constitution states that the president must “take Care that the Laws be faithfully executed.” But that does not mean that the president has an absolute duty to prosecute all violations of federal law, or that he cannot choose which ones to pursue based on policy considerations. If it did, virtually every president in the last century or more would be in violation.
Some argue there is a crucial distinction between case-by-case decisions not to prosecute (as with marijuana possession on campus) and a generalized, systematic policy of not doing so in a category of cases. Butthat distinction makes little sense. After, all, case-by-case decisions are often driven by policy considerations such as the the harm caused by the violation in question and whether federal resources might be better employed elsewhere. At the very least, there is no meaningful difference between a de facto policy of exempting a large category of violations from prosecution (as with marijuana possession on campus) and a more explicit, formal decision to the same effect. If anything, the latter is preferable because it is more transparent and more readily subject to public scrutiny and debate.
Moreover, past presidents such as Ronald Reagan and George H.W. Bushhave systematically exempted large numbers of illegal immigrants from deportation, including some 1.5 million people in the case of Bush. That does not by itself prove that Obama is acting legally; perhaps Reagan and Bush were undermining the rule of law as well. But it does at least provide an important precedent, especially since few in either party claimed that the prior administrations’ actions were illegal at the time they were done. In this field, Congress itself has delegated wide latitude to the president, which makes the exercise of discretion even less problematic than in many other cases where the law is written in a more categorical way.
So, it would appear that the President is largely in safe territory under both the specific immigration laws that the Executive Branch purports to exercise authority at all and under the Constitution itself. On some level this isn’t entirely surprising, as I’ve noted already, to a large degree the program that the President announced last night is little more than an expanded version of DACA, and there seems to be little question that DACA was a proper exercise of Executive Branch authority. The fact that the same basic authority is now being used to impact a larger number of people should not, in and of itself, change the legal analysis and no Court is going to say that something that is legal if applied to a small group of people will suddenly become illegal if applied to a larger group. The issue is whether or not legal authority exists for the action, after all, not whether or not there is some numerical threshold beyond which the President is not allowed to exercise discretion. Absent some kind of numerical limit like that in the law, which doesn’t appear to exist, how far-ranging the temporary relief he grants under this program might isn’t really relevant. If it’s authorized, it is authorized regardless of how many people are able to benefit from and, of course, if it were unauthorized then the fact that only a small number of people benefited from it would be irrelevant as a matter of law.
As Somin notes in a subsequent post, though, the fact that something is legal doesn’t mean that it is either appropriate, right, or that it establishes a precedent that won’t lead to something bad in the future, but as he points out there is much going on between the President and Congress these days that is contributing to that environment:
I think that co-blogger David Bernstein is at least partially right to argue that Obama’s actions, while not illegal, may undermine some of the unwritten norms of American politics. In general, a major policy change like this should be done with congressional approval. Of course, Obama’s defenders can make the powerful response that his departure from norms is a response to similar departures by House Republicans. Immigration reform might well have gotten through Congress, but for House Speaker John Boehner’s adherence to the “Hastert Rule”, which prevents bills from coming to the floor unless they are supported by a majority of the majority party, not just a majority of the House as a whole. Like Obama’s actions yesterday, the GOP’s adherence to the Hastert Rule is perfectly legal. But it does undermine the norm of majority rule in the House.
In times of increasing political polarization, both sides tend to push the limits of unwritten rules. So it has proved with Obama and his Republican adversaries in Congress. I doubt that any one decision by either the president or the GOP can change that. For that reason, among others, I think that the benefits of yesterday’s decision clearly outweigh the incremental damage to political norms. The mutual hostility and distrust between Obama and the GOP makes it unlikely that any broad immigration reform bill can get through Congress during this administration. But that was probably true even before yesterday.
This is, obviously, only a preliminary examination of the legal issues surrounding what the President announced last night. We should take the Republicans in Congress at their word when they say that they intend to fight back against what the President has done and, at least on some level, that is likely to include some form of a legal argument either in the form of an actual lawsuit or political rhetoric that will frame the debate between the two branches of government for months to come. Additionally, I have to agree with the idea that the fact that there is gridlock on this issue on Capitol Hill is not, in and of itself, sufficient justification for the President to use Executive Branch authority to get around what is supposed to be the normal operation of the legislative process. Even when it’s completely legal, such action only tends to create precedents for future Presidents to push the envelope even further, and to undercut the will of the people as expressed in the outcome of Congressional elections. In other words, just because something is legal, doesn’t mean that it’s proper, and sometimes it is more important for a President to refrain from exercising power that properly belongs to Congress than it is to do something because he thinks he knows better than the 435 elected representatives of the people.
As a preliminary matter, though, it seems clear to me that Dellinger, Lederman, Posner, Somin, and others on both the left and the right who have looked at this matter and found that there appears to be sufficient support in the law for the discretion that the Executive Branch is exercising here. In the end, though, this is as much a political battle as a leg one, and perhaps more the first than the second. To a large degree, the outcome of that battle will depend on how the public reacts to what the President announced and how he is choosing to grant the relief that was announced last night. It also depends, of course, on how Republicans on Capitol Hill react. As Somin notes, it was unlikely that immigration reform was going to be able to get through Congress in any case, so it’s unclear that the President has actually changed anything here. The bigger question is how this exercise of Presidential authority will impact the broader relationship between the two branches, and what that means going forward. Personally, I’m not at all optimistic because it seems likely that the policy initiative is only likely to harden positions on all issues on both sides. This will lead to more gridlock on Capitol Hill, of course, and when 2016 rolls around the American people will have to decide what to do about that.
Here is the OLC Memorandum: