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.

constitution-preamble-gavel

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:

Justice Dept. Memo on Obama Immigration Plan by Doug Mataconis

FILED UNDER: Barack Obama, Borders and Immigration, Law and the Courts, Politicians, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Moosebreath says:

    “actions that were taken by predecessors such as President Eisenhower, President Reagan and President George H.W. Bush are strikingly similar”

    vs.

    “the fact that something is legal doesn’t mean … that it establishes a precedent that won’t lead to something bad in the future”

    If what has been done in the past is “strikingly similar”, then how does it establish any precedent at all?

  2. michael reynolds says:

    So it was legal, precedented, and has the effect of protecting American citizens – children – who might otherwise be rendered instant orphans, left alone without parents, with no notice, pushing those American children into the hands of social service agencies.

    I can certainly see why Republicans are in a lather almost equal to the lather they built up over the spreading ebola pandemic that has killed so many, many Americans.

  3. C. Clavin says:

    Boehner adheres to the Hastert Rule when he wants to, and doesn’t when he doesn’t want to…which means it is not so much a rule as it is a suggestion.
    Instead of trying to pretend that Obama has done something terrible, Doug, you ought to be holding your parties feet to the fire for creating the environment in which this type of action has become necessary.

  4. Tillman says:

    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.

    James Madison in Federalist No. 51 pretty much squashed the idea of equal branches when he admitted “…it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates.”

    I don’t expect presidents to exercise caution against future tyranny — it isn’t human nature to voluntarily relinquish power. I expect legislatures concerned with tyranny, as the Republicans have claimed to be (and as you note, we should consider such claims in good faith), to actively seek substantive remedies against unilateral action. The best way they can do that is through legislation. However, if they’re more concerned for their own jobs and standing within a political party, it makes sense they’d do nothing or symbolic actions at best. Y’know, like that lawsuit.

    So I expect a forthcoming addition to that lawsuit. 🙂

  5. Tyrell says:

    The president did not say anything about assimilation. One principle should be making English the official US language. Another provision should be automatic deportation for any illegal person who commits a felony. Another would be a step type promotion system that provides for eventual citizenship. This would include passing English test, high schoo diploma, and paying taxes.

  6. Jack says:

    So it was legal, precedented, and has the effect of protecting American citizens – children – who might otherwise be rendered instant orphans, left alone without parents, with no notice, pushing those American children into the hands of social service agencies.

    That’s the same reason I carry a pistol. Yet you and others have said to the effect”Just because you can do something, doesn’t mean you should.”

    Nice double standard. As long as it’s something you agree with it’s OK. Got it.

  7. michael reynolds says:

    @Tyrell:

    Oh for God’s sake, Tyrell. English is the official language of planet Earth. English is in no danger. Wherever it’s not the first language, it’s the second language – Europe, Africa, Asia, South America, wherever you go people speak English. I kinda think we can safely absorb a few million Spanish-speakers, particularly since the ones we are talking about are already here.

    I thought conservatives didn’t like government mandates.

  8. michael reynolds says:

    @Jack:

    No, Jack: carrying a weapon is stupid and reckless. Not deporting a child’s parents is humane. See the difference there?

    So, it remains entirely true that just because you can do something you don’t have to do it, and doing it may not be wise. Right?

  9. Tillman says:

    @Tyrell: I think the battle to make English the official U.S. language ended when they started printing nutritional information in both English and Spanish.

    @Jack: So you carry a pistol in case the government changes the minutiae of certain laws to benefit non-citizens who reside here?

  10. Gustopher says:

    @Tillman:

    expect legislatures concerned with tyranny, as the Republicans have claimed to be (and as you note, we should consider such claims in good faith)

    Why should we consider Republican claims in good faith? There’s an outrage du jour from the Republicans, and they surely aren’t all in good faith, why assume any are? Accepting the nomination in front of pillars, saluting holding a coffee cup, issuing entirely precedented executive orders, death panels… The list of nonsense goes on and on. Why would you assume any of it is in good faith?

    I mean that as a serious question. What separates this from the usual “We have to keep our base angry” complaints?

  11. C. Clavin says:

    @Jack:
    I’m betting you carry a pistol because you are insecure about your place in the world.
    But feel free to blame it on something else. You’re the only one being fooled.

  12. C. Clavin says:

    @Tyrell:

    This would include passing English test, high schoo diploma, and paying taxes.

    Based on that sentence…you fail.

  13. Tillman says:

    @Gustopher: Presuming people mean what they say in good faith can highlight the absurdity of what they say. It’s like a soft reductio ad absurdum. With the Republicans over the last decade, it’s served me well. It also works on Democrats, but the BS quota is smaller with them so far.

    In general I support being the better man, even when that comes off as being naive. That’s just me though. Hell, I think Obama overstayed being the better man by some years.

  14. ernieyeball says:

    @Tyrell:..One principle should be making English the official US language.

    Just exactly what do you mean by “official US language”?
    How will you enforce the use of english as the “official US language”?
    What will the punishment be for those who do not speak english when you think they should? Fines? Jail terms?
    When english becomes the “official US language” will you join the “Official Language Police Force” so you can bust Roman Catholic citizens who say the mass in Latin? Maybe you can raid synagogues where some Orthodox Jews speak Hebrew.
    My Grandma spoke German all the time even though she was a natural born US Citizen.
    You probably would have busted her too.
    Adios, Ciao, Aloha, Pax

  15. grumpy realist says:

    As President Obama points out, the only action Congress needs to do to deal with the topic (if they hate him doing it by Executive Order) is to pass some laws themselves.

    Is this really a case of a President grabbing for more authority, or a President tweaking the nose of Congress to get them to actually defend their powers?

    The Republicans seem to think that they can “remain in wise and masterly inactivity” for as long as they want with no side effects. Funny, the Japanese tried that at the end of WWII and got a nuke dropped on them.

    A vacuum in power does not remain.

  16. anjin-san says:

    @Tyrell:

    “official US language”

    So you want to government to have the power to control how you speak? You are comfortable with that degree of control over your life?

    Good to know.

  17. Grewgills says:

    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.

    Really? So, the entire Congress is unified in its opposing this action?

  18. michael reynolds says:

    @Grewgills:

    Including I have to assume, the 68 Senators from both parties who voted for the immigration bill that John Boehner killed so that he could raise more money from agitated nincompoops.

  19. DrDaveT says:

    @ernieyeball:

    Just exactly what do you mean by “official US language”?

    I have no idea what Tyrell means, but for me it means that public education should be in English, and only in English (with the obvious exception of foreign language instruction, which we suck at). I support this. My reasons are as follows:

    1. Kids learn foreign languages automatically. It’s not a burden for them, the way it is for adults.
    2. As noted upthread, English is the world language. Proficiency in English is a valuable economic skill, especially in the US.
    3. It would save enormous (and growing) amounts of money, making public education more cost effective.
    4. It aids assimilation, and I am unapologetic about thinking that assimilation is a good thing in this country, both for the nation and for its population overall.
    5. It produces a bridge generation of bilinguals that can support their monolingual parents and aunts and uncles and grandparents in coping with a mostly-English society, learning some English, etc.
    6. It’s temporary and fast, for any given immigrant family, because see #1 above. One generation at most.

    Some individuals will be delayed in their progress through school by the need to learn English before they learn (say) math and history. I don’t believe in social promotion among English native speakers, either, so I don’t see this as a huge downside. It is a downside, but I think the benefits more than outweigh it.

    If there are powerful arguments against this policy, I’d love to hear them.

  20. Steve Hynd says:

    OK, so Doug admits that Obama’s action is legal and precedented, and many of us feel that it is also humane (something Doug has remained worryingly silent on), but Doug’s objection now is that it might push the most recalcitrant Republican caucus in history further into the corner it painted for itself?

    Bawhahahahaha!

    (But seriously – I’m interested in Doug’s forthright opinion on whether Obama’s executive order is the humane thing to do. Aren’t we all? It’s positively worrying how hard he’s danced around that aspect of the discussion.)

  21. Jack says:

    @Tillman: No, I carry a weapon because “it [is] legal, precedented, and has the effect of protecting American citizens – children – who might otherwise be rendered instant orphans, left alone without parents, with no notice, pushing those American children into the hands of social service agencies.

  22. ElizaJane says:

    @DrDaveT:
    Just a very quick note to say that some kids learn English automatically and some don’t. It also depends on what age they are. But I adopted 3 non-English-speaking kids, each at about 6 years old, and watched their English acquisition. One learned it “automatically.” One absolutely did not. One hated the transition and was miserable, but did learn “automatically.” An even slightly older child would certainly have more trouble. And my children were all also hearing English at home, so they had a huge advantage of a child who hears another language half the day.

    The myth of “it’s so easy for children” is kind of, well, a myth.

  23. michael reynolds says:

    @Jack:

    Sorry, no: In fact, more guns = more crime. But you just keep on believing whatever feeds your preconceptions. Don’t you ever lose that baseless faith in utter nonsense.

  24. michael reynolds says:

    To steal a point from Maddow, the Republicans in Congress are so upset they immediately went on vacation. They’ve been schooled and now they’re going to pretend it all never happened. At least that’s what the establishment is hoping for. Let’s see if Limbaugh and the Ted Cruz crazies let them get away with that.

  25. An Interested Party says:

    I’m interested in Doug’s forthright opinion on whether Obama’s executive order is the humane thing to do. Aren’t we all? It’s positively worrying how hard he’s danced around that aspect of the discussion.)

    Perhaps doing what is humane and being a libertarian don’t mix very well…

  26. DrDaveT says:

    @ElizaJane:

    The myth of “it’s so easy for children” is kind of, well, a myth.

    Well, it sort of depends on what you mean by “children”. Six years old or older… no, you’re outside the “automatic” range. It’s up to their kids.

    I’m sorry about the kids who didn’t make the transition well, but I suspect (please correct me if I’m wrong) that their kids are fluent in English? (Or will be, if they aren’t yet parents?) If you look back at the history of immigrants to the US, the first generation has not generally fared well — but their children did better, and their grandchildren did very well indeed. That leads to the painful choice — should we make things better for the first generation or two, at the expense of the grandkids and subsequent generations? Or is it better in the long run to promote the hard road?

  27. Grewgills says:

    @Steve Hynd:
    He has said he supports the policy, but has reservations about it being implemented this way. Of course there is no other way that it will be implemented within the next three years at least.

  28. Mike says:

    Doug. Legal scholars are not at all in general agreement that the action is within the scope of presidential authority. The Reagan and Bush actions small instep were part of implementing laws passed by Congress not actions taken in spite of congress. Both the Dream act and the gang of 8 bill were rejected by congress.

    Prosecutory discretion is not applied to millions of cases at once.

    Granting work permits is changing law.

  29. sam says:

    @Mike:

    Prosecutory discretion is not applied to millions of cases at once.

    Did you miss the part about President Bush (the first) applying prosecutorial discretion to 1.5 million illegal immigrants? And, BTW, if you would take time to read Somin’s piece over at the VC, you would see that he points out that for years, through administrations Democratic and Republican, the feds chosen not to prosecute college students who use drugs on campus — in clear violation of federal law– whose number far exceeds the number of folks covered by President Obama’s actions.

  30. Just Me says:

    I stjll can’t wait for your reactions when a republican president uses this power to do something you don’t like. Oh the hypocrisy.

    That said I don’t think changing immigration laws in this way is devastating. I do want to see all felonious criminal illegals deported (and incarcerated until that deportation) and if an illegal immigrant needs public assistance for them to be deported. Part of becoming a legal immigrant is showing that you can come here and work without relying on public assistance. Illegal immigrants should be held to that standard.

  31. michael reynolds says:

    @Just Me:

    My reaction to a Republican doing the same would be a function of whether a Democratic Congress had spent six years doing nothing but obstructing. If we, in a similar position, refused to confront pressing issues, refused to do our jobs, the jobs we were elected to do, then I’d have no choice but to accept executive action.

    Again: all they have to do is pass the bipartisan Senate bill. Instead, they went on vacation.

  32. steve says:

    @Jack: I predicted that this would happen and I evem more confidently predict that this will send a message that in effect will open the flood gates the like of which the world has never seen.Mexico of course is merly the portal.A gate way if you will to litterly hundreads of milloins of hispanics from all over central and south America.From cities with several times the murder and violent crime rates of any city in America.This prediction is based on years of research going back to ancient rome.I must say I do feel a little sympathy for what the American people have comming,no one deserves the sort of world that Obama is dumping on them.