My Entry in NY Times Room for Debate: Drawing A Line on Executive Action for Immigration

November 18th, 2014

The NY Times Room for Debate invited me to submit a contribution discussing the constitutional aspects of the President’s decision to defer deportations. Though I had only 400 words (I have a more substantive version coming out in National Review shortly), I tried to answer the tough question–where do you draw the line between permissive prosecutorial discretion, and abuse of power. Here’s how I framed the issue:

The Constitution imposes an affirmative duty on the president to “take care that the laws be faithfully executed.”

Immigration enforcement, like all aspects of the president’s faithful execution, entails some degree of prosecutorial discretion. Congress only appropriates enough funds for 400,000 deportations each year. That is fewer than 4 percent of those subject to deportation. At some level, all presidents must set internal priorities of who to deport, and who not to deport.

But just because the president can’t deport everyone, doesn’t mean he can choose to protect millions. Executive discretion cannot be unfettered, and along the continuum from complete enforcement to nonenforcement, the presumption of unconstitutionality increases. As nonenforcement of the law leans toward thwarting Congress’s statutes, rather than merely conserving resources, prosecutorial discretion turns into an abuse of power.

Elizabeth Price Foley addressed the issue in a similar fashion:

At some point, the discretion not to prosecute a law becomes a failure to faithfully execute it. Whether President Obama’s immigration policies have crossed that line will be a matter for both courts and the American people to judge.

Eric Posner, keeping with his general view of executive power, argues that because no line has been drawn, there probably hasn’t been a violation of the Constitution:

If, under the Constitution, the president must enforce much of the law but need not enforce all of it, where should the line be drawn? It might be surprising that after two centuries of constitutional experience, we don’t know the answer. Probably the reason is that most of the time, the president’s nonenforcement decisions are not controversial. Every day, an executive branch official decides to drop an investigation, or not to prosecute a case, because resources are scarce and the harm caused by a particular legal violation does not seem serious. We don’t object because that’s a sensible thing to do.

Though I think that begs the question for two reasons. First, the mere fact that no court has addressed this issue is attributed to the fact that no one would ever have standing. As I wrote:

Further, no court has weighed in on this issue because individuals are usually not injured by the president declining to enforce the law. Thus they lack what is known as “standing” to bring suit, and there are no judicial decisions. But that does not resolve the issue.

Second, the President’s independent duty to defend the Constitution surpasses any judicial remedy:

By citing nebulous inherent powers that cannot be checked by Congress — the hallmark of President George W. Bush’s administration — the president is flouting oath to “protect and defend the Constitution.”

To that end, I call on the Administration to release any OLC memos on this “legally unassailable” position–assuming such a memo exists, or it was not disregarded.

The Times reported that the president has “received legal advice from Attorney General Eric H. Holder Jr. about the limits of what he can do to reshape the immigration system.” What isn’t clear is whether the Office of Legal Counsel — the elite legal analysts in the Justice Department — has approved of this expansion of executive power. In 2011, that office disapproved of the president continuing hostilities in Libya beyond the 60-day clock in the War Powers Resolution. But thepresident disregarded the opinion after finding a more favorable ear in the State Department.

Before any action is taken, the president should release any legal memoranda explaining the constitutional basis for this wide-ranging executive action on immigration. Unlike other withheld and redacted legal memos concerning drone strikes and terrorism, there are no national security bases to keep us in the dark. If the position is as “legally unassailable” as the president asserts, debating the issue prior to action should be an easy and productive process.

In closing, I address the fact that other deferrals of prosecution by Presidents Reagan and H.W. Bush do not support this discretion.

President Obama’s proposed actions are unprecedented. Deferrals of deportationby Presidents Ronald Reagan and George H.W. Bush in 1987 and 1990 were temporary stopgap measures. The deferrals allowed children and spouses of those granted amnesty by the 1986 immigration reform to remain while meeting the requirements for naturalization.

In contrast, none of the potential deportees President Obama deferred has a path to citizenship.


This is a historical point that has been totally lost in the debate. I will flesh this argument out more in my National Review article.