In the latest volley between Eric Posner, Ross Douthat, and Reihan Salam concerning executive power, Posner takes issue with Salam’s
Last week, Salam argued in Slate that another problem with the president’s immigration plan is that its justification is congressional intransigence. The president has said that he must act because Congress has failed to act. But “gridlock is good,” says Salam. Congress is implementing the will of the people by not doing anything at all.
The problem with this argument is that the president has never offered congressional intransigence as a legal reason for his actions. (I did, but I don’t have his ear.) Obama’s legal rationale is the one I just laid out. The president offered congressional intransigence as a political reason for his actions
Salam gets his argument backward. He wants the president to take account of Congress’ stalemate. But Congress’ decision not to act is just that—it’s not a new law. Thus, the president has properly relied on existing law, which takes us back, once again, to his authority to deport, not deport, or do anything in between. Obama can’t infer anything from Congress’ failure to act. The noisy complaints of a bunch of House Republicans possess no legal status whatsoever.
Salam’s point was based on my article, Gridlock and Executive Power (which Posner graciously provided comments on). As I discuss at some length, the President has actually relied on gridlock as the “legal,” not “political” reason for his actions.
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 prosecutorial discretion to not enforce the laws against an entire class of people.
This is a species of what I have dubbed the President’s corrective powers. This isn’t merely a “political reason,” but the legal justification itself. Please read my paper if you’d like a more complete discussion.
Also, I think Posner misapplies a 2009 article by Adam Cox and Cristina Rodriguez, which I discuss in my paper. Posner writes:
All of this goes double for immigration law. The president’s authority over this arena is even greater than his authority over other areas of the law. For decades, presidents of both parties have deferred legal action against millions of people who entered the country unlawfully. As the immigration law experts Adam Cox of New York University School of Law and Cristina Rodriguez of Yale Law School have described in a paper, this has been going on at least since the 1940s.
In that decade, Presidents Franklin Roosevelt and Harry Truman created a guest worker system, called the Bracero program, for Mexican agricultural workers. After Roosevelt started Bracero, Congress authorized it for a short time. When that period ended and the law expired, President Truman kept the program going. In the 1970s and 1980s, thousands of Cuban and Haitian migrants washed ashore in Florida. Various presidents allowed them to remain in this country and obtain work despite their illegal status.
To the contrary, Cox and Rodriguez specifically note that the President cannot rely on his “inherent executive authority” to “restructure our family admissions policy” (this is what DACA did).
In a 2009 article in the Yale Law Journal in 2009, Adam B. Cox and Cristina Rodriguez posited that President Obama would “have the power to overhaul the immigration screening system even in the absence of congressional action.” Though the authors “doubt[ed] very much that he will claim inherent executive authority, to restructure our family admissions policy or create a large-scale guest worker program.” The authors reiterate that that “we are fairly confident that this option would not be viable in the contemporary political environment. The assertion of inherent authority would be too disruptive to the conventions that have evolved over time regarding Congress’s leadership in this arena (and in administrative law generally).” Yet, this is in fact, precisely what the President has done.
 Adam B. Cox & Cristina Rodriguez, The President and Immigration Law, 119 Yale L.J. 458, 464 (2009).
 Id. at 540.
The example Posner mentions concerning Truman continuing the policies of Roosevelt is what the authors refer to as “de facto delegation,” which they distinguish from pure inherent power. Congress gave some authority, and didn’t really take it away, so the President keeps it. As I explained in my paper:
The authors suggest that in the absence of express delegation of this power from Congress, the President could rely on “de facto delegation.” This implied argument is tough to square with the defeat of the DREAM Act, where Congress specifically declined to give this power to the President.
This is different from claims of inherent executive authority. In the case of DACA, there hasn’t been a de facto delegation to block deportations of millions. In fact, Congress specifically declined to adopt this policy. Posner writes, “Obama can’t infer anything from Congress’ failure to act.” This is almost the exact *opposite* of what has happened. Obama has looked at the fact there is bipartisan support in both Houses–that was killed by a Senate filibuster–as a reason to enact DACA and beyond. But it should be the opposite lesson. That the legislation didn’t crystalize should encourage the President to more narrowly construe his powers, not more broadly.