President Obama last night unveiled an executive order that suspends the deportation of as many as 5 million illegal aliens — almost half of the estimated 11 million persons illegally present in the United States — for the remainder of his term of office. He also intends to issue work permits to many of them. The administration’s stated objective is to “normalize” the conditions of life for the beneficiaries of the order — to enable them to be as fully integrated into mainstream American society as possible. The president’s expectation is that his successor and a later Congress will hereafter be forced, morally and politically, to legalize the permanent presence of this population and to put it on the path to citizenship. As former Justice Department lawyers who a) have defended a vigorous executive branch and b) support an expansion of immigration quotas, we believe that Obama is violating the Constitution and that Congress and the courts must respond.
When he assumed office, Obama swore that he would enforce the Constitution and the laws. During his first election campaign, and for a period after, he and his party argued against what they saw as overreaching claims to executive power made by President George W. Bush. Obama originally acknowledged that he, as president, had no legal authority to take exactly the kind of step that he has just ordered. In 2011, he said: “With respect to the notion that I can just suspend deportations through executive order, that’s just not the case, because there are laws on the books that Congress has passed. . . . [W]e’ve got three branches of government. Congress passes the law. The executive branch’s job is to enforce and implement those laws.” In 2013, he said: “I’m not a king. I am the head of the executive branch of the government. I’m required to follow the law.”
In acknowledging his constitutional duty to enforce the law (even when the law embodies policy choices with which he vehemently disagrees), Obama was merely restating what many earlier presidents, including Lincoln and Washington, had said long before. Basing themselves on centuries of English law, precedent, and practice, the Framers had consciously denied the president any authority to “suspend” the law. They embodied his duty in Article II, Section 3 of the Constitution, which requires the president to “take Care that the Laws be faithfully executed.”
Defenders of the legality of the president’s action have made several arguments on his behalf.
“We don’t have the funding.”
Budgetary constraints preclude the enforcement of federal law at all times and in every case. Administrators have to make judgments about the best use of the scarce resources available to them. They must choose what enforcement measures to take and which cases to bring. Obama’s defenders have claimed that his deportation deferrals reflect the prudent and permissible choice of enforcement priorities in immigration.
But budgetary concerns do not drive Obama’s decision. If they did, Obama would have taken the non-enforcement decision as quietly as possible, rather than announce it in a blaze of publicity. Handling such a policy shift discreetly would not encourage massive and continuing violations of the law. If a county prosecutor lacked the resources to prosecute any burglaries, announcing that she would no longer bring burglary cases would have the foreseeable effect of making burglaries more common. So it is here. Announce to illegal aliens that they have zero risk of deportation, and they are more likely to stay. And others outside the country more likely to enter illegally. Obama’s 2012 announcement provoked the tragic surge of children seeking to enter the United States illegally from Central America last summer.
Work permits are plainly not a cost-savings measure. They only raise the expected level of violation of the law. An illegal alien with work authorization and a legal job is more likely to remain. If the president truly means to enforce the immigration laws within financial constraints, he would deny, not grant, work permits and other benefits. Finally, the stated aim of the decision is to integrate the beneficiaries as much as possible into the mainstream of American life. But that too is not a budgetary purpose; it is a legislative policy choice, which may well increase costs to government at all levels as illegal aliens make use of schools and social services.
“Reagan and Bush did it.”
Part of Obama’s decision is known technically as “deferred enforced departure” (DED). It covers some but not all of the 5 million. This piece of the policy is the part that carries work authorization. Those who are granted DED have a “quasi-legal” status. Apologists for this action have argued that other presidents have granted DED on a class-wide basis on numerous occasions.
But in a July 2012 memo, the well-regarded Congressional Research Service (CRS) compiled a list of the blanket DED grants since 1976. CRS noted that “most of these discretionary deferrals have been done on a country-specific basis, usually in response to war, civil unrest, or natural disasters. In many of these instances, Congress was considering legislative remedies for the affected groups, but had not yet enacted immigration relief for them.” Obama’s policy differs from the general pattern of the past 40 years in three important ways: It is not country-specific; it does not arise from a critical humanitarian emergency in the home country; and it is done in open defiance of Congress.
If past practice sets the norm, then we should also consider President Eisenhower. When Eisenhower entered office, he found that our southern border was porous. As many as 3 million illegal aliens had walked or waded northward. Once in the United States, they were often forced to take work in agriculture, including cotton growing in the Rio Grande Valley, and were paid half the wages of ordinary working Americans. Using only 1,075 Border Control agents — roughly a tenth of the number available to Obama — Eisenhower cut off the illegal flow. In one month, immigration officers captured 50,000 illegal workers in two states; another 488,000, fearing arrest, fled the country. Within the next three months, 500,000 to 700,000 illegal workers had fled Texas voluntarily.
“It’s a matter of prosecutorial discretion.”
Prosecutorial discretion is indeed one of the president’s affirmative authorities and is rooted in the text of the Constitution. But its primary sphere of operation is in the criminal law. The executive’s power not to bring a criminal case even against a suspect who is likely to have committed a crime can be seen as a logical corollary of the president’s power to pardon. Clemency for those accused or convicted of crimes had long been considered an essential attribute of rulers, and the Framers vested that traditional authority in the president. Moreover, prosecutorial discretion in the criminal area makes sense in separation-of-powers terms: If Congress has enacted a criminal statute that is too harsh, or has become obsolete, or clearly was not intended to apply in a specific situation, prosecutorial discretion serves the constitutional goal of protecting individual liberty from the tyranny of one branch. But the Constitution provides no affirmative presidential power not to enforce the civil law as against a class of 5 million people. That is not “prosecutorial discretion”; it is simply the refusal to discharge a basic constitutional duty.
Obama’s Justice Department seeks to defend his order by reference to a 1985 Supreme Court case, Heckler v. Cheney. Although the Court declined to review the legality of an agency’s non-prosecution decision in a particular case, this doesn’t offer much help to Obama. First, the Court was as much concerned with limiting its own powers as with defining the executive branch’s responsibilities. In general, courts should not review non-enforcement decisions in specific cases. If they do, they will be micro-managing executive functions, in violation of separation-of-powers principles. But the non-reviewability of an executive choice for inaction doesn’t mean that the choice is constitutional. It might be unconstitutional but simply outside a court’s reach. Second, Heckler reserved judgment on the category of non-enforcement decisions that were so sweeping that they amounted to an abdication of the executive’s responsibilities. A decision not to enforce the deportation law against roughly half the nation’s illegal-immigrant population looks like an abdication to us and would seem so to a Court faithfully applying Heckler.
“Congress is dysfunctional.”
This is the weakest defense of all — and yet, it is the one on which the administration leans very heavily. A new Congress has just been elected and will take office in January. The president had contemplated issuing his order last summer, then pulled back when the polling showed that it would hurt his party, then came forward with it again after the election. Instead of taking the opportunity to work with a new Congress toward immigration reform (which many Republicans strongly favor), he has decided to wreck the chance of bipartisanship. The “dysfunction” is with a president who neither respects the wishes of the electorate nor is willing to play his part in good faith in the constitutional law-making process.
Although Obama’s deportation-deferral program violates the president’s duty to enforce the laws, the Constitution does not set out any obvious paths for resistance. The Constitution does not specifically set out the immigration power itself, only a power of naturalization, which it vests in Congress. The Supreme Court, however, has long recognized that control over the borders and immigration lies in Congress’s hands, not the president’s. To restore the Constitution’s separation of powers, critics will have to avail themselves of a variety of responses, some of which are less politically feasible than others.
Our Founders established three primary mechanisms to control an unconstitutional government. The first was the power of impeachment. The Clinton affair focused on whether perjury fell into the Constitution’s impeachable offenses: “Treason, Bribery, or other high Crimes and Misdemeanors.” Clinton’s defenders made a good point that this provision seemed to limit impeachment to the president’s public performance of his job. At the time of the Constitution’s writing, the British Parliament had used impeachment to remove ministers not just for constitutional disputes, but for incompetence and failure in office, such as losing a battle or a war. The Framers would have had no problem concluding that the president’s refusal to carry out his constitutional duties amounts to an impeachable offense.
The problem with impeachment is not its constitutional availability, but its political viability. As the Clinton affair teaches, Congress should not embark on impeachment unless it has the votes to convict. The House may vote to impeach — essentially a decision to prosecute — but the Senate must agree by a two-thirds vote to remove the president. Even with their stunning victories in this month’s midterm elections, Republicans have nothing approaching 67 votes in the Senate. Not only will impeachment fail, but as with Clinton, it will likely redound to Obama’s political benefit. Congress could always censure the president, as it considered during the Clinton affair. That could be a stinging rebuke, but it would have no practical effect on Obama’s order or his unconstitutional exercise of power.
The second, more promising, route is the power of the purse. Responding to the criticism that the Constitution made the president a potential dictator, James Madison declared in the critical Virginia ratifying convention that “the sword and the purse are not to be given to the same member.” Comparing the U.S. Constitution to the British, he said, “The sword is in the hands of the British King; the purse in the hands of the Parliament. It is so in America, as far as any analogy can exist.”
Opponents in Congress should immediately turn to the funding power. They need not aim for a complete government shutdown, which proved disastrous for the Republican party last year. They should use funds as a scalpel, not a sledgehammer. Congress could increase funds for border and immigration-control officers and cut them for higher management and legal advisers in the Department of Homeland Security and the Justice Department. It could separate the DHS appropriation from the overall federal budget and take a stronger hand in reorganizing and downsizing the department. It could refuse to cooperate with the Obama administration on any new funding proposals in other areas unrelated to immigration, and it could ignore the administration and spend more funds on national security.
Republicans should combine funding cutoffs with the usual tools of oversight to paralyze the Obama administration for the next two years. It could hold hearings where Obama officials face tough questions and conduct investigations into the performance on immigration, border, and national security. The Senate could refuse to confirm any Obama nominees for executive or judicial positions. It could refuse to approve any treaties or international agreements. President Obama should expect that his proposals in any area will be dead on arrival in Congress.
A third means for relief from unconstitutional government puts Republicans in a tough spot. Americans’ first reaction to a violation of the Constitution is to go to court. The problem is that of standing, which requires that a plaintiff have suffered an “injury in fact” that is traceable to the government’s action and for which the court can order a remedy. Conservatives such as Justice Antonin Scalia favor standing because it makes sure that federal judges are deciding real cases and controversies, as required by the Constitution, and not using lawsuits as an excuse to make social policy. When the president refuses to enforce the law, plaintiffs will have difficulty hurdling the standing bar, because all citizens may be harmed, but no individual American is uniquely harmed enough to bring suit.
Here, however, recent precedents point the way to a viable lawsuit. In Massachusetts v. EPA (2007), a state sued the Bush administration for failing to issue regulations controlling the emissions of greenhouse gases. Standing should have stopped Massachusetts from forcing the president to enforce its understanding of the Clean Air Act. But with the liberal Justice Stevens writing, the Court held that Massachusetts had standing because, some day, the rising seas caused by global warming might reduce the state’s coastline.
We consider the Court’s finding of injury to be tenuous, if not laughable. But if Massachusetts enjoys standing because of the rising seas, a state today must have standing to challenge the non-enforcement of the immigration laws. States, especially those along the nation’s borders, will expend more money and resources on the illegal aliens in their jurisdictions. They will have to spend more on police and social services, such as education and health care. Just as Massachusetts could sue to force the Bush administration to enforce its preferred understanding of the Clean Air Act, so states today should be able to sue to force the Obama administration to enforce the immigration laws. In the 1990s, the state of California sued the Clinton administration for failing to enforce the immigration laws under a similar theory. While the case never made it to the Supreme Court, the lower courts did not reject the case for lack of standing (though they did dismiss it because California founded its case on the U.S.’s responsibility to protect the states from invasion).
All of this will take time, of course, on multiple fronts. But Republicans should not forget the ultimate check on a president: the next president. Any unilateral executive non-enforcement decision, no matter how sweeping, is fleeting. Because orders like these are based on a president’s decision how to exercise (or not) his constitutional powers, the next president can undo it on his first day in office. A new president could take the list of illegal aliens who have applied for Obama deferrals and order them deported. A new president could order enforcement actions brought against any business that hires aliens under Obama’s work permits. It will take winning the 2016 election to ultimately undo the harm that President Obama has inflicted on the Constitution, and it is to that goal that Republicans should immediately turn.
— Robert Delahunty is professor of law at St. Thomas School of Law. John Yoo is Heller Professor of Law at the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute. They both served in the Justice Department during the George W. Bush administration.