The Overreaching Executive and Immigration

There as been much written over the past couple of years about President Obama’s executive order concerning illegal immigrants. The order seeks to prevent the deportation of at least 4 million illegal immigrants by granting them a status that would enable them to receive federal benefits. A lawsuit unsurprisingly sprouted from that action in which 26 states challenged the legality of the President’s order. That suit have finally wound its way to the U.S. Supreme Court in the case of United States v. Texas. Reports from the Court’s oral argument of the case, which was held last week, seem to indicate that the members of the Court are divided about the legality of the order. The debate up to the time when the Supreme Court agreed to hear the case had been about whether the executive action violates the Administrative Procedure Act, which it plainly does because the order did not go through the required process of public comment before it was issued.

For reasons that have not been so thoroughly explored, however, the order is also unconstitutional. You don’t have to take my word for it though because, for starters, President Obama declared for nearly two years before he issued the order that he had no such power.  Given that liberals usually proclaim that Obama is the most constitutionally literate President of all-time, one would think this might be enough to convince skeptics, but as National Review’s Jim Geraghty once famously said: “All Barack Obama statements come with an expiration date.  All of them.”

Fortunately, law professor (and former federal circuit judge) Michael McConnell has done everyone the favor of carefully explaining exactly why this executive order on immigration is unconstitutional. McConnell’s basic point is that under the Constitution the President has the duty to enforce the law, but he does not have the prerogative to forego enforcing a duly enacted law altogether. The article is long because McConnell takes the time to explain the history behind the clause in the Constitution at issue. Of course, to a liberal such historical antecedents will carry no persuasive force, but every rational thinker should care about the Founders’ deliberate choices concerning the powers the Constitution bestowed and denied to the office of the Presidency because those choices speak to the limited federal government under which this nation grew to greatness.

McConnell’s article says most of what needs to be stated on this topic. If you want the counter-argument, such as it is, you can read this editorial from The New York Times. With the context of the two articles, I have just a few thoughts.

First, stating that the President lacks the power to refuse to enforce a law presumes that it already has been signed by serving President or a previous one and that the serving President has no constitutional objection to the law. As I have noted in other entries on this blog and elsewhere, the President has the authority to decline to enforce a law he genuinely believes to be unconstitutional. Obama has offered no constitutional objection to Congress’s immigration legal scheme and it would be very difficult for him to do so given that Congress has plenary authority in that area.

Second, I think some people get confused about the duty of the President to enforce the law and whether he has leeway in this area because they have in mind something akin to prosecutorial discretion. Prosecutors have discretion not to enforce the law to its full degree in order to achieve the overall goal of law and order. We see this, for example, when a prosecutor makes a deal with a low level drug dealer in order to get to his supplier. Over time, this discretion has morphed into state (and federal) attorney generals declining to enforce entire laws for wholly political reasons. Attorneys general do not rightly have the latter power (again, assuming the law’s constitutionality), but people get confused about the difference between declining to “throw the book” at individual criminal perpetrators and failing to enforce laws altogether.

Indeed, the NYT editorial plays on this confusion, noting that we cannot possibly deport 11 million illegal immigrants, but that observation is a feint. Not being able to completely enforce the law because the federal government has failed to perform its duties for so many years with regard to immigration enforcement is not the same thing as deliberately refusing to enforce the law as a whole, which is what Obama has done through his executive order. The NYT editorial contains several similar absurdities.

For example, when the Times quotes the Supreme Court as saying “the federal government has ‘broad, undoubted power over the subject of immigration and the status of aliens,'” it fails to note that this statement was from Arizona v. United States, a case that was considering whether Arizona could have its own immigration policy in contradiction to that which Congress already has in place. The Court was not remotely stating that the President has “broad, undoubted power” to contradict the law made by Congress.

Likewise, the NYT claims that “the President’s actions did not change anyone’s legal status” through the executive order. Here the Times plays a word game because it is relying the fact that the executive order does not categorize the immigrants included within it as “legal.” But they are offered access to benefits to which they otherwise are not entitled and they are shielded from deportation, so they reality is that their status most certainly is changed.  Why else would potentially eligible immigrants be jumping at the chance to qualify under the order?

The editorial claims that the States have no standing to bring this suit; “standing” is the legal term for whether a party in a lawsuit claims an actual legal injury. This claim is beyond laughable because the States are obviously financially detrimentally harmed by the executive order’s extension of benefits to the subject immigrants.

Finally, whenever the NYT pulls out the card that Chief Justice Roberts “likes to say the Court is above politics” and here is a chance to prove it, what the Times really means, of course, is that this is a chance for the Court to rule in favor of the politics with which the Times agrees. After all, just a few paragraphs before this statement the editorial declared that Obama’s maneuver was “both smart politics and humane policy.” But even if that was true, it has nothing to do with whether the executive order is legal.  This is typical liberal legalism: If you like it, no legal nicety — even a constitutional one — should get in the way.

McConnell demonstrates why the Constitution prohibits exactly the kind of order Obama attempted in this case. If the words of that document still mean anything, then the prohibition should be recognized by the Supreme Court in this case. If we truly need a more “humane” immigration policy, then let it be enacted the way every other federal law is: through congressional vote and presidential signature.