Last week at the Federalist Society convention, a panel was held on the President’s duty to take care that the laws are faithfully executed with John Baker, Ron Cass, John Eastman, Chris Schroeder, Neal Devins, and moderated by Judge Griffith (CADC). Most of the discussion focused on the President’s ability to defer prosecutions of deportations. Sam Stein of the Huffington Post (who was sitting next to me by the only table in the Mayflower with a power outlet) reported “Legal Panel At Federalist Society Begrudgingly Accepts Obama’s Immigration Powers.”
This headline irked many members of the Federalist Society, but Sam accurately reported the event.
The talk was, well, lawyerly. Every conclusion seemed to have a qualification attached to it. But, by and large, the panelists agreed the president has wide legal latitude to prioritize and shape deportation laws, as regrettable for Republicans or the long-term balance of powers that may be.
My good friend John Baker made a very important point, which inspired an Op-Ed I wrote in today’s Los Angeles Times.
“If Congress wants to restrain the discretion of the president, they are supposed to do what the separation of powers encourages them to do: Write the statute tightly so that it will be actually administered the way you want it administered,” Baker said. “The reality is many members of Congress don’t care how it is administered until somebody squawks about it. They don’t read the statutes, so how do they know how it is going to be administered.”
As usual, John is exactly right on the structure of our Constitution. Throughout the 20th Century, Congress has shirked its duty to legislate and appropriate to maintain the separation of powers.
In my Op-Ed, which the LA Times titled “Obama’s overreach? Look in the mirror, Congress,” I write that Congress has itself to blame for this power grab–but not in the way you think. In short, I argue that OLC has found a way to justify the President’s expansion of prosecutorial discretion under existing precedents. The scary thing about this wide-ranging suspension of the law is that his view isn’t obviously wrong.
While Obama’s action represents a brazen expansion in the size and scope of executive authority, Congress shares in the blame for acquiescing to decades of presidential power grabs. In order to maintain the separation of powers, Congress must reassert its constitutional mandate to legislate and appropriate, rather than lazily passing a blank check to the White House.
And I’m not talking about the President’s warning to “pass a bill.” No. I mean Congress should start reasserting itself, through the power to legislate and the power to appropriate, to ensure the Executive cannot simply evade the law he doesn’t like through non-enforcement.
Here is the key analysis on immigration, where I peer through the smokescreen of prosecutorial discretion, and call it what it really is:
This brings us to President Obama’s immigration actions. Over the last 60 years, Congress has given the president virtually unlimited authority over immigration enforcement, and then it has stood back and acquiesced as one chief executive after another continued exempting groups from the naturalization laws, with no repercussions. When Congress refused to pass the Dream Act in 2011, which would have provided a path to citizenship for 1 million young people brought here unlawfully as minors, the president indefinitely deferred their deportation. Congress did nothing in response. Now, after Congress refused to pass further immigration reform, the president is deferring the deportation of 4 million undocumented immigrants who are the parents of American citizens.
The president argues, not unreasonably, that with limited resources appropriated by Congress, he can only deport 4% of those subject to deportation. But that argument only goes so far. After he tried and failed to pass new laws, it is fairly transparent what is really going on with his new “priorities.” Under the guise of allocating limited resources, he has found a shortcut around Congress.
And, as we saw in Noel Canning, and Youngstown before, the President can aggrandize powers when the Legislature does not check it.
When Congress fails to check the other branches, the executive, acting alone, aggrandizes the legislative power from generation to generation. Justice Antonin Scalia reminded us recently that “in any controversy between the political branches over a separation-of-powers question, staking out a position and defending it over time is far easier for the Executive Branch than for the Legislative Branch.” Or, as Justice Felix Frankfurter eloquently warned in the landmark 1952 separation-of-powers case, Youngstown Sheet & Tube Co. vs. Sawyer, “The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.”
What’s my prescription for this constitutional ailment? Congress should do its job, and check the President, rather than being lazy.
When the new session of Congress begins, and members express outrage that the president’s discretion has allowed him to thwart the rule of law, they need to look into their own chambers and realize that the fault lies in themselves. As James Madison recognized in Federalist No. 51, “Ambition must be made to counteract ambition.” Congress must stop shirking its responsibility, and reclaim the legislative mantle. Through the power of the purse, and the drafting of precise laws, it can steer the separation of powers back to their proper constitutional moorings.
I hope my invocation of James Madison does not set Southern California into a tizzy, and trigger aftershocks of liberty along the San Andreas fault.
The article I wrote over the summer, Gridlock and Executive Power, needs to be significantly refreshed. I think I will turn it into (at least) two law review articles, with the goal of transforming it into a book project on the historical relationship between Congress and Presidents with respect to executive evasions.