In National Review, Reihan Salam takes Eric Posner to task for his Schmittian view that President Obama is well within his authority to not enforce the immigration laws through DACA, and likely whatever new executive action is coming down the pike. Reihan graciously cites my new article, Congressional Intransigence and Executive Power, which touches on the President’s theory of executive action to justify DACA.

President Obama has posited that because the Senate immigration bill represented a consensus among a large number of senators, on the right and left, and a variety of different constituencies (organized labor, the evangelical community, business leaders), the refusal of House Republicans to pass comprehensive immigration legislation necessitates executive action. This represents a novel constitutional theory that Josh Blackman of the South Texas College of Law touches on in a new article:

In NLRB v. Noel Canning, the Solicitor General argued that the President’s reading of the recess appointment power was justified as a “safety valve” in response to “congressional intransigence.” All nine Justices emphatically rejected this position, finding the President’s three appointments, made during a three-day break, could not be saved because of an obstructionist Senate. Yet, the reliance on “congressional intransigence” as a rationale for broadly interpreting inherent executive powers has been a hallmark of the Obama Presidency. As part of his “We Can’t Wait” platform, President Obama routinely cites Congress’s obstinacy to his agenda as a justification to engage in a series of executive actions that suspend, waive, and even rewrite statutes.The lesson from Noel Canning is clear—congressional intransigence does not allow the president to flex his inherent Article II powers, as a means to release a safety valve of pressure in Congress.

My new article, “Congressional Intransigence and Executive Power,” places the Court’s unanimous holding in Noel Canning in the context of the President’s unilateral action with respect to the Affordable Care Act, Deferred Action immigration policy, as well as the prisoner trade for Sgt. Bowe Bergdahl, and the “hostilities” in Libya. For each decisive inaction, in the face of with congressional opposition, the President executes at his “lowest ebb,” and warrants the closest scrutiny. In the domestic affairs context, the President can rely only on his inherent “policy powers,” which reside below Justice Jackson’s third Youngstown tier, in the fourth zone of “insight.” [Emphasis added]

Blackman specifically addresses deferred action in the case of DREAM-eligible young adults:

As a justification for DACA, the President stressed that “In the absence of any immigration action from Congress to fix our broken immigration system . . . we’re improving” the immigration policy on our own. This policy does not fit neatly into the “We Can’t Wait” rubric, as Congress considered it, and defeated it. Congress failing to vote on a law is a decision on policy in and of itself. Yet, the President cited this impatience, and frustration with the legislative process as the basis for an expansion of his inherent prosecutorial discretion to not enforce the laws against an entire class of people.

But is this unilateral expansion of power defensible on grounds of prosecutorial discretion, as Posner seems to think that it is? Blackman argues otherwise:

In the case of the recess appointments to the NLRB, DACA, and the myriad revisions of the Affordable Care Act, Congress has opposed each of the actions taken. The President has not argued that any of these limitations imposed by Congress were unconstitutional, or violated the separation of powers. Rather, inherent authority has been relied upon to justify policies where there is a disagreement or impasse with Congress.

The Office of Legal Counsel has taken the position that while it may be valid for the President to decline to enforce the laws due to his view that they are “unconstitutional,” it would not be permissible to do so because he “opposes [them] for policy reasons.” Apropos, John Yoo charged the President with “the unprecedented stretching of the Constitution and the rule of law.” For, President Obama “is laying claim to presidential power that goes even beyond that claimed by the Bush administration, in which I served. There is a world of difference in refusing to enforce laws that violate the Constitution (Bush) and refusing to enforce laws because of disagreements over policy (Obama).” Further, without the benefit of a raging war, bolstered by the Commander in Chief Clause, the President’s inherent authority over domestic matters becomes quite weak.

The president does, according to Blackman, have policy powers implied by Article II, including “the power to advance new ideas, shape policy, and twist the arms of legislators to enact his agenda.” Yet these powers are best understood as a way to set the political agenda, not to unilaterally change the law when these agenda-setting powers fail to persuade Congress:

Where the President acts based on his inherent policy power on domestic matters, in clear contravention of congressional intent, in an effort to maneuver around congressional intransigence, the executive’s actions should be afforded the least deference. The suspension of the laws, in an effort to bypass congressional intransigence, and enact new substantive policies, must be viewed skeptically. Whether the President wants to wait for it, or not, it is for Congress to decide on such matters. 

Posner doesn’t really engage with any of these arguments, nor does he ever address the fact that the president has an explicit constitutional obligation to “take care that the laws be faithfully executed.” It is helpful to recall that Posner has devoted much of his recent academic work to making the case against what he and his co-author Adrian Vermuele have dubbed “tyrannophobia.” One wonders if we should also be concerned about tyrannophilia.

I have received some excellent comments on my paper, and I hope to post a revised version by the end of the week. Coming soon to a Law Review editor inbox near you!