In September, over 100 immigration law professors signed a letter explaing that the President has the authority to defer the deportations. While the letter is very thorough in its analysis of the immigration statutes, and relevant administrative codes, it does not completely answer one question: does the size of the group being exempted from deportation matter.

Some have suggested that the size of the group who may “benefit” from an act of prosecutorial discretion is relevant to its legality. We are unaware of any legal authority for such an assumption. The administration could conceivably decide to cap the number of people who can receive prosecutorial discretion or make the conditions restrictive enough to keep the numbers small, but this would be a policy choice, not a legal question.23 A serious legal question would arise if the administration were to halt all immigration enforcement, because in such a case the justification of resource limitations would not apply. But the Obama administration to date appears to have enforced the immigration law24significantly through apprehensions, investigations, detentions and over two million removals.

To say that there is no legal authority does not resolve the question. To borrow from another debate we know all too well, an unprecedented exercise of federal power far beyond anything done before does not render it unconstitutional. (As I explained in a previous post, citations to President George H.W. Bush’s deferred deportations are quite different.) But such a novel exercise of power does render it constitutionally suspect. If this is something that could have been done before, it probably would have. The fact that it hasn’t been done in two centuries suggests maybe it cannot be done.

Further, the reason why we do not have any legal authorities on point, is that courts cannot get involved when the Executive engages in non-enforcement (See Gridlock and Executive Power). When the law is not enforced, no one is injured (in the legal sense. at least). Without an injury, there is no standing to bring suit, and thus there are no cases or controversy worthy of judicial resolution. Immigration advocates have argued that there are no legal precedents opposing the President’s actions–but this misses the important point about standing. There can’t be any cases on point! While the Court has recently reaffirmed that the President has broad powers to decide how to prioritize resources, there are no cases decided that challenge the President’s decision not to enforce the law. To say there are no authorities one way or the other is not to say the policy is constitutional, or unconstitutional.

Nonetheless, the Supreme Court is not the sole expositor of the constitutionality of the President’s actions. The Chief Executive himself bears the ultimate independent duty to his oath to “protect and defend the Constitution.” That is why I would want the President to release memos from the Office of Legal Counsel to explain the basis for this power. I am interested to see what “evolved” from last year, to this year.

Specifically, what are the limits, and does it apply to other areas of the President’s powers, such as criminal prosecution. Scott Greenfield observes:

Or marijuana, in states that have legalized the use, whether medicinal or recreational?  And what of the flip side, where by executive policy, the Attorney General informed his minions that in the exercise of their prosecutorial discretion, they were not bound by the canons of ethics? How about the exercise of discretion where it involves a policy to not seek the death penalty for any person who has an IQ below 80, or better yet, not at all? …

But if this sweeping exercise of prosecutorial discretion is constitutional, the ramifications for many of the outrageous failures of the criminal justice system suddenly shift. The executive can fix them, by mere fiat, based on prosecutorial discretion.  And if the executive says one thing and does another, then he has no excuse.

The President can only deport a small number of people subject to deportation, and can only prosecute a small number of crimes in Title 18. Is there a principled constitutional distinction between criminal prosecution and immigration? If so, what is the difference? If not, why has the President not exercised similar discretion in other areas?

Further, as I noted in my appearance on PBS–in a comment that seemed to alarm Gwen Ifill–what happens when a future President uses this power to do something you don’t like:

So, if I can indulge for a second, imagine a President Ted Cruz decides not to enforce environmental laws or imagine if a President Rand Paul decides not to enforce a corporate income tax. The president’s ability to suspend the laws and not enforce them raises serious implications.

I want to see what the legal implications are. Where are the limits of the ability of the president to not enforce the laws? I want to see, what are the memoranda making that point?

Even if the President thinks he has the constitutional power to proceed, we should understand what he views the limits of those powers to be. And if he can’t articulate the limits, then we should be very skeptical of this assertion in the first place. As we learned in a context we know all too well, limiting principles matter.