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.