The Scope of Obama’s Immigration Action Does Not Make It Illegal

Republicans on Capitol Hill
have blasted Obama’s immigration action as unlawful and
unconstitutional, an unchecked executive acting far beyond his
legal authority.

“By ignoring the will of the American people, President Obama
has cemented his legacy of lawlessness and squandered what little
credibility he had left,” said GOP House Speaker John Boehner in a
statement that typified the Republican party’s reaction.

But a panel of lawyers at a convention for the Federalist
Society last week seemed to suggest that the broad contours of the
president’s move were within legal boundaries, according to

an account from Sam Stein at The Huffington Post. The
move is expansive, yes, but not necessarily illegal given the broad
authority the president has to prioritize enforcement of
immigration law. Here’s a snippet: 

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.

“I think the roots of prosecutorial discretion are extremely
deep,” said Christopher Schroeder, the Charles S. Murphy Professor
of Law and Public Policy Studies at Duke Law School. “The practice
is long and robust. The case law is robust. Let me put it this way:
Suppose some president came to me and asked me in the office of
legal counsel, ‘Is it okay for me to go ahead and defer the
deportation proceedings of childhood arrival?’ Under the present
state of the law, I think that would be an easy opinion to write.
Yes.”

On the topic of discretion, it’s worth remembering that it’s not
just something that has been allowed into the system, it’s
something that’s impossible to avoid, because the resources simply
don’t exist to pursue every case. As this Justice Department memo
on the president’s enforcement lattitude notes, “DHS has
explained that although there are approximately 11.3 million
undocumented aliens in the country, it has the resources to
remove fewer than 400,000 such aliens each year.” Under current
law, then, the question is which cases DHS will go after, and which
ones it should go after. 

And then there is the question of scale: 

Schroeder was speaking specifically about the deferred action
program that Obama already has put into place — the one affecting
so-called Dreamers who were brought to the U.S. as children. But
later, Schroeder expanded his legal reasoning.

“I don’t know where in the Constitution there is a rule that if
the president’s enactment affects too many people, he’s violating
the Constitution,” Schroeder said. “There is a difference between
executing the law and making the law. But in the world in which we
operate, that distinction is a lot more problematic than you would
think. If the Congress has enacted a statute that grants
discretionary authority for the administrative agency or the
president to fill in the gaps, to write the regulations that
actually make the statute operative, those regulations to all
intents and purposes make the law.

“I agree this can make us very uncomfortable. I just don’t see
the argument for unconstitutionality at this juncture,” Schroeder
added.

There’s already been a lot of discussion about the scale of
Obama’s action, which is expected to shield four to five million
unauthorized immigrants from deportation. Part of the argument that
Republicans are making seems to be that the sheer size of the move,
and the number of people it affects, makes it both different from
previous executive actions on immigration and illegal.

I think it’s important to assess scale as a matter of political
precedent and expansion of executive power, and I think there’s
little question that Obama’s move is unprecedented. But I also
think that Schroeder is probably right that the scope of the
action, on its own, does not make the move illegal.

If you don’t like this, that’s fine and perhaps even
understandable, but the trick, then, is to find ways to limit the
president’s authority through statute, which is what another one of
the panelists argued:

“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,” [John Baker Jr., a
visiting professor at Georgetown University Law Center] 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.”

If members of Congress think actions beyond a certain size and
scope should be illegal, then they ought to write a law explicitly
saying so, tightly and clearly defining how, when, and under what
circumstances the executive is allowed to act.