President Barack Obama once again has brushed aside the founding principles that hold our Constitution together. His signature health-care scheme depends on the claim that the Constitution places no limits on Congress’s power to regulate. Fearing that the Supreme Court would overturn that law, he attacked this spring the very power of judicial review — the Court’s right to refuse to enforce laws that violate the Constitution. In just a few short years, he has disregarded the central functions of two of the three branches of government.
With his recent change of immigration policy, President Obama has now gone a perfect 0-for-3. The Department of Homeland Security will no longer enforce immigration laws against illegal aliens who meet certain criteria: They came to the United States at an age younger than 16 and are currently under 30, have not committed any major crimes, are in school or have graduated or served in the armed forces, and have resided in the U.S. for at least five years. Such aliens — who may number as many as 800,000 — may now seek work permits for two-year periods without fear of deportation. “It makes no sense to expel talented young people who for all intents and purposes are Americans,” the president said at a Rose Garden press conference. Obama no doubt acted from a variety of policy and political motives, some of them likely admirable. But his move has pushed executive power beyond all constitutional limits — even in the view of this writer, an academic defender of a vigorous presidency and a Justice Department lawyer in the Bush administration.
There is a broad consensus that America’s immigration regime cries out for fundamental reform. Unlike most other nations of the world, the United States remains a country formed of immigrants — there is no American people with a shared race, history, and culture that existed before and independent of the United States. Deportation of every illegal alien not only would turn the nation’s back on this unique character, but would take years, consume valuable resources, and cripple the economy. On the other hand, the United States cannot condone rampant disregard of the rule of law and must exercise control of its borders. Our immigration laws strike a balance that pleases no one and results in bizarre absurdities: For example, the uneducated sneak across the border with relative impunity while scientists who receive Ph.D.s at American universities must go home.
A sensible beginning for reform might include a fast path to citizenship for alien children brought here illegally by their parents. Senator Marco Rubio of Florida, a rising Republican star, supports a provision along these lines; another version appears in the DREAM Act, which would grant residency status for two years to illegal aliens who came to the U.S. as minors and have graduated from high school. Their status would ripen into permanent residency if they completed two years of college or served in the military. The bill failed to overcome a Senate filibuster, however, so President Obama — surely seeking to secure Hispanic support for his reelection — decided to evade the congressional logjam and impose his own version.
But a basic constitutional obstacle stands in his way. Article I, Section 8 gives Congress, not the president, the authority “to establish a uniform rule of naturalization” — the process by which aliens become citizens. Although the Constitution does not explicitly assign border control and immigration to any branch of government, the Supreme Court inferred in the Chinese Exclusion Cases (1889) that these authorities also reside with Congress. The extensive Immigration and Naturalization Act sets out grounds for deportation and defines the limited cases in which the executive branch may suspend the deportation of illegal aliens (extreme hardship, for example). It does not give the president authority to interrupt the deportation of whole classes of illegal aliens, and certainly not in numbers approaching 800,000 people.
According to the Supreme Court’s decision in Youngstown v. Sawyer (1952), a case in which the Court blocked President Truman’s attempt to prevent a strike of the nation’s steel mills during the Korean War, a choice by Congress to grant the executive only a narrow power over a domestic matter makes presidential reaching for broader power unconstitutional. While I believe that Youngstown does not control the president’s exercise of his commander-in-chief authority in wartime, it certainly applies to domestic affairs exclusively controlled by Congress, such as immigration.
President Obama’s claim that he may defer the deportation of so many aliens at once rends the fabric of the Constitution and is incompatible with the rule of law. Under Article II, Section 3, the president has the duty to “take Care that the Laws be faithfully executed.” The Framers included this provision to make sure that the president could not simply cancel legislation he didn’t like, as had the British king. Since the days of Machiavelli, through Hobbes, Locke, and Montesquieu to the Framers, executing the laws (along with protecting national security) has formed the very core of the executive power. As Alexander Hamilton explained in Federalist 75: “The execution of the laws and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate.”
Under this understanding of presidential power, President Obama may not refuse to carry out an act of Congress simply because he disagrees with it. The Framers gave the president only two tools to limit unwise laws. First, the president has a qualified veto over legislation, which, Hamilton argued in Federalist 73, would not just serve as a “shield to the executive” but also “furnish[ ] an additional security against the enaction of improper laws.” Second, the Framers gave the president the right of pardon, which he could use to free those unjustly convicted. President Obama has not made use of either of these constitutional powers here.
A president may decline to carry out a congressional command in only two situations. First, the president may and should refuse to execute congressional statutes that violate the Constitution, because the Constitution is the highest form of law. If federal officials had to enforce every congressional enactment, they “must close their eyes on the constitution, and see only the law,” as Chief Justice John Marshall wrote in the Supreme Court’s Marbury v. Madison decision (1803) recognizing the power of judicial review. “This doctrine would subvert the very foundation of all written constitutions.” In the War on Terror, the Bush administration argued that the president could refuse to execute laws that infringed on the executive’s constitutional national-security powers. Otherwise, a Congress with a different view of foreign policy could order the military to refuse to carry out the president’s orders as commander-in-chief.
When Thomas Jefferson, Andrew Jackson, Abraham Lincoln, and Franklin Roosevelt refused to enforce a law, they did so because it violated their executive powers under the Constitution or the individual rights of citizens. Upon assuming office, for example, Jefferson dropped all prosecutions under the Sedition Act (which made criticism of the government a crime) and pardoned anyone convicted under “a law unauthorized by the Constitution, and therefore null.” President Lincoln refused to obey a writ of habeas corpus to release Confederate prisoners issued by Chief Justice Roger Taney (author of the Dred Scott decision), because it intruded on his power as commander-in-chief to respond to the outbreak of the Civil War.
The executive’s right to ignore unconstitutional legislation cannot include Obama’s immigration scheme. No one can claim with a straight face that Congress’s command that the government deport illegal aliens — regardless of their age — violates the Constitution. Democrats may well argue that Obama’s refusal to enforce the immigration laws is tantamount to the Bush administration’s claim that the Foreign Intelligence Surveillance Act could not limit the interception of terrorist e-mails and phone calls. But there is a world of constitutional difference between refusing to enforce laws that violate the Constitution and impede the executive’s response to a national-security emergency (Bush) and refusing to enforce laws because of disagreements with Congress over policy (Obama).
The second exception to executive enforcement of federal law is prosecutorial discretion. Discretion recognizes that limited time and resources prevent the executive from pursuing every violation of federal law. The Justice Department must choose priorities and prosecute the cases that cause the most harm, have the greatest impact, deter the most dangerous criminals, and so on. The Obama administration has raised prosecutorial discretion as cover for its rewriting of the immigration laws. “Our nation’s immigration laws must be enforced in a firm and sensible manner,” Homeland Security Secretary Janet Napolitano said in a press release. “But they are not designed to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language. Discretion, which is used in so many other areas, is especially justified here.”
But discretion means deciding whether to enforce federal law in particular cases. A president acting in good faith cannot invoke discretion to cancel a law — especially if the executive branch is enforcing the rest of the laws governing the relevant policy area (as the administration is doing with respect to immigration). Imagine the precedent. A President Mitt Romney could repeal Obamacare simply by refusing to fine or prosecute health insurers who failed to sell policies that met federal demands, or consumers who failed to buy policies as required by the individual mandate. He could lower tax rates simply by declining to prosecute anyone who refused to pay capital-gains or income taxes above Bush-tax-cut levels. He could give industry a boost by ordering the EPA to stop enforcement of environmental laws.
What is to be done? We should not expect any resistance from the media and academic elites who spent the Bush years complaining about the return of the imperial presidency and the shredding of the Constitution. They have been silent when confronted with Obama signing statements identical in kind to those they decried under the Bush administration, or the use of drones to kill American citizens abroad.
Instead, opponents of President Obama’s immigration unilateralism should place their hopes in Congress and the political process. Congress could pass legislation overriding the Obama plan and enacting the beginnings of its own immigration reform. Admittedly, this is a tall order. But even if no such legislation is passed, Congress could cut the funding and personnel of the Immigration and Customs Enforcement agency involved in the Obama program, refuse to confirm political appointees to the Department of Homeland Security, and hold oversight hearings.
Meanwhile, states could require that businesses continue not to employ illegal immigrants, even those with an Obama work permit. The permits have no authorization in federal law, and so cannot preempt state regulations. This option may gather support if the Supreme Court upholds Arizona’s immigration law, which seeks to enforce federal immigration law where the Obama administration would not. And if Mitt Romney wins in November, he could reverse the Obama policy on his first day in office simply by ordering the Department of Homeland Security to enforce the federal immigration laws properly.
It is right to feel compassion for the blameless children of illegal immigrants, but we should not show it by setting aside the Constitution that has served our nation so well. The president is refusing to enforce a federal law simply because he disagrees with a policy choice by Congress. It is an abuse of power incompatible with the vision of the Constitution’s Framers, and one that even the most stalwart defenders of an energetic executive should not support.
– Mr. Yoo, who served in the Bush Justice Department from 2001 to 2003, is a law professor at the University of California at Berkeley and a visiting scholar at the American Enterprise Institute. He is the author, most recently, of Taming Globalization: International Law, the U.S. Constitution, and the New World Order.