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. 

NEXT: Immigrants May Be Able to Stay, But Life Won't Get Easier For Them in Arizona

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  1. Does this mean I get some of my border patrol and ICE tax dollars back?

    1. Now that is a Friday Funny.



  2. Uh-oh. Fat Rush (praise be unto him!) will issue a Fatwa on you for this, Suderman.

  3. Prosecutorial discretion…sure

    Offering work authorization to these people, totaling as many as 4 million, will also help the administration crack down on companies that hire undocumented workers.…..z3Jj3LRu4b

  4. Can H&R create a top-sticky, permanent immigration thread so that the people who care oh so much about this issue can just argue the same fucking shit over and over and over again in it, forever? Then the rest of us can stay out and let them exercise their obsessions without us?

    1. /cheers. I knew it would be a shit show today.

    2. But I like to choose which days I’m racist and/or xenophobic. Adds colour to life!

      1. and yes, I spelled “color” wrong just to piss you off!

        1. You limey bastard!

    3. Even I am getting tired of it. The actual effect of this is not going to be very big. Obama is nothing but Shreek if we dug him out of his box and made him President. Obama is just throwing shit and desparately trying to get the country to pay attention to him.

      He wants us all to be angry and realize how important and powerful he is. That is 90% of what is going on here.

      1. He wants us all to be angry and realize how important and powerful he is. That is 90% of what is going on here.

        Ding! Ding! Ding! Ding!

          1. God damn it, now I can’t! Why did I click the play button?!?

          2. But have you seen this!?

            It left quite the impression last night

            1. Nothing compares to this.

              1. Oh really

                This is a fight you can not win

                1. What have I done?

                  Don’t make me get the blue waffles. I’ll have everyone in here sharing vomit bags.

                  1. Blue waffles=fake

                    This is real

                    Click if you dare

                    1. You really want to start this war? Because I’ve got transhumanist genital modifications somewhere on here. For…reasons.

                    2. Let’s do this!

                      I’ll go easy on you at the beginning.

                    3. I’ll concede mainly because I’m worried we’re going to end up banned if we continue. Reason doesn’t really moderate comments but they probably don’t appreciate fine bodymod art. I’ll throw a warning up. Probably not the best thing to start posting on an open thread, but fuck it, it’s more productive than immigration arguments.

                    4. I’ll definitely stop posting these images as well, but I agree that it was fun(ny).

                    5. Being fake doesn’t make it less gross. Thank goodness I have a half day at work and get to leave in half an hour. Then I can click on all of these pictures without worrying about setting off the filter.

                    6. It just cheapens it and reduces the shock value

                    7. That’s pretty … adventuresome!

            2. I though leprosy wasn’t a problem in the West anymore.



                Those images are.[removes glasses]…unsound.


                  1. Ok guys, you still sure The Millenial is Bo? Because I don’t think Bo regularly checks BMEzine or Modblog.

                    1. I thought only stubborn fools like Cytotoxic actually believed that

          3. WARNING: If you are in any way a normal, sane human being, DO NOT click mine or The Millenial’s links below. We probably shouldn’t have done this on an open thread and are generally terrible people.

            1. But still better than Obama, Graham, Pelosi, etc…

              Also, most people who post here are not normal, so this is likely much ado about nothing.

              1. I’m thinking more of the people who actively write Reason’s articles, not the den of lunatics and perverts that make up its comments.

            2. On the other hand, most other sites probably would have banned us. I quite like Reason’s comments policy.

            3. Terrible people?

              You’re my favorite people.

              This has been very, uh, educational. (Not the octopus one, though; that one was just plain fun.)

              1. If you thought the octopus one was actually fun then I can direct you to some videos haha.

                1. Jesus. I bet that’s some shit.

                  1. To be fair, the ones I know of mostly involve eels

                    1. Heroic Mulatto posted some snake fucking awhile back, can’t remember which thread though.

                    2. What’s worse eel/snake fucking or horse fucking? There’s a lot of fucked up foreign porn out there

                    3. My vote is for horse fucking. That’s some fucked up stuff, right there.

                    4. I think gender factors into it a bit too. I mean, female eel/snake fucking, whatever, that’s just weird, squirmy masturbation. Horse/donkey fucking? You think you’d have to actually be somewhat attracted or have some kind of sexual benefit out of it. That Vice documentary about donkey fucking has guys discuss why they enjoy it, I can’t remember their reasons though.

                    5. Oh, eel-fucking! The real money is in tentacles, Millenial. C’mon, this is beginner stuff!

                    6. Don’t tell me you like hentai

                    7. I don’t think I would ever tell anyone that.

              2. I know a guy in Osaka if you require further ‘education’ on the subject of octopi.

                1. Classic stuff, right there.

      2. Even I am getting tired of it. The actual effect of this is not going to be very big. Obama is nothing but Shreek if we dug him out of his box and made him President.

        Now that’s a threadwinner.

      3. Exactly. It’s not about the size, it’s about the specificity. This won’t affect the # of deportees, but it says his admin. can bestow semi-official non-deportable status on a class of people who come into existence because he goddamn says so! They weren’t special before, but they will be. But only as long as he says so, and only as long as he’s in power.

    4. Come over to the “Gary Johnson supports making slaves bake gay wedding cakes” thread

      1. Oh yes, that’s another candidate for a perma-sticky-thread.

        We had a nice science fiction thread yesterday. Can’t we have more of those? Or maybe one about whether gin martinis are better than vodka martinis? GIN IS BETTER.

        1. It’s true that we haven’t had a thread on the HBO announcement of a Foundation series. Let me start by asking how and where the graphic sex will be included? Clearly starting with Hari Selden being a woman.

          1. Loves me some Foundation…seems a difficult project for the screen though

        2. Psh, vodka. Like it could ever compare to gin.

          I’ll take whiskey/scotch over gin, though.

          1. I hate gin. Give me bourbon or Tennessee whisky.

            1. You need to try Old Grove Gin.

            2. How can you hate gin? This has to do with you being a lawyer and needing your booze to not smell on your breath when you talk to clients, doesn’t it. You lush.

              1. Hendrick’s gin is pretty decent, in my opinion.

                1. Hendrick’s is super smooth, which some people like. I prefer some bite and flavor, which is why I get Crater Lake.

                  1. Once again, demonstrating the multitude of issues you have. 😛

                    I like most of my liquors smooth, since I typically drink a little after I smoke. Too much bite and I’ll just come up coughing.

                  2. Really surprised they didn’t include Junipero in their reviews. It certainly has bite and flavor. Although the blog author mentions it in their post describing how they review Gin.

              2. I hate it because you like it. If it were up to me, Obama would’ve expelled everyone of Italian descent just to get rid of you and your horribly taste in food. Using his prosecutorial discretion.

                1. ProL dreams of an America where thin crust pizza and gin martinis are banned, and only deep dish and Night Train are available. Plus the Northeast is entirely populated by Micks. Like him.

                  1. No, the Irish have to go, too. Too Italian.

          2. Hey, I’m basically a rich woman on a diet! Sort of! Not really. I’m not on a diet.

            1. Good! You’re perfect the way you are.

              /pinches Epi’s love handles (if applicable)

              1. Don’t encourage him. He has a problem. In fact, it’s time for his intervention. Someone in Seattle go strap him down and give him those eye restraints from A Clockwork Orange.

                1. I’ll call Nurse Ratched. When she learned the scope of the issue, I’m sure she’ll put him at the top of her list.

                  1. Just so you know, she sodomized him with a Bajoran Duranja last time.

                    1. That is an…oddly specific thing to sodomize with.

                      Was it lit at that time?

                    2. You’ll have to ask the Chief. He was there.

              2. Love handles?!? Did you just call me fat?!?

                1. She’s either flirting with you or insulting you. Or perhaps flirsulting you. Or is that insulflirting?

                  1. I thought that’s what you were doing?

                    1. Stop harassing Episiarch about his diet!

                  2. I believe it’s a technique called negging. It’s remarkably effective on some females, so I thought I’d give it a shot.

                    1. Do I…do I look fat in this shirt? Oh god I do!

                      I’m…I’m going to not eat and then go to the gym for a few hours.

                    2. He’s also got love jowls.

                    3. Pro Libertate, how do you know all this?

                    4. I get his newsletter. I didn’t subscribe, and the unsubscribe function doesn’t work, yet I can’t help reading it in all of its fascinating horror.

                    5. Here, try one of these.

                      If that doesn’t work, there’s always this alternative.

                    6. Pictures of your mom only inspire me so much, dude.

      2. I would be fine with one, permanent puppycide thread.

    5. +500 nativist vs open border vs pedantic arguments over the meanings of the terms

    6. What the fuck do Millennials think? Did anyone poll them on this?

  5. The point that literally everyone has missed here is that enforcement discretion is in itself a very bad thing. The mere act of choosing not to enforce a law (regardless of how “good” or “bad” it is) makes laws themselves pretty meaningless.

    1. Which is worse – equally enforcing bad laws or at least trying to carve out some exemptions from them?

      That is a real question. For example, drug possession (or sale, for that matter) is a victimless crime. If a prosecutor decides not to prosecute someone for possessing some small amount of an illegal drug, is that a good thing? On the one hand, it is good to not prosecute someone for a victimless crime, as doing so would violate the N.A.P. On the other hand, allowing prosecutorial discretion also means that prosecutors can single out disfavored people or groups for enforcement while exempting others. This generally favors the powerful and well-connected, who then have no incentive to abolish the bad laws.

      So since the bad laws themselves are not anywhere near being repealed, which is worse?

      1. I had a tl;dr response, to shorten it:

        If bad laws are enforced equally, the public will realize the lack of justice in those laws that much sooner.

        If bad laws are not pursued with the same voracity as good laws, it erodes the righteousness (for lack of a better word) of good laws in regards to actual justice.

        Sorry, kind of technical, hope you understand my logic here.

        1. ^This.

          And of course, while Obama is proposing something intentionally marketed as “compassionate” (preference for families with children), it just happens, by pure coincidence, to inflate the welfare rolls, because children of illegals, who already get welfare, will now get more. And, of course, it’s a lure to the next wave of illegals. So he gets more people on welfare, a larger class of poor people who, even if they can’t vote Democratic yet, will serve as props and excuses for more statism. (And since children of immigrants are, as a group, far more likely to commit crimes, it’ll be an excuse for more unionized police and social workers.)

          Is it really just a coincidence that this looks just like the Cloward-Piven strategy? I used to think references to that were rather paranoid, but I’m not so sure any more.

        2. I agree that this would be the best approach, but unfortunately I don’t have a lot of faith that the public will realize the lack of justice in those laws.

  6. But I also think that Schroeder is probably right that the scope of the action, on its own, does not make the move illegal.

    But its not just declining to enforce the law, which we might have an argument about. If this was just “given the resources available, this is how I will prioritize”, that would be much more defensible.

    That’s not what this is. He is also issuing green cards to people who are not eligible for such cards under the current law.

    Did the learned panel discuss this aspect?

    1. He is also issuing green cards to people who are not eligible for such cards under the current law.

      Really? I must have missed it. Who qualifies?

      1. I think you have to go “register” yourself with the feds. It’s all about the money…always about the money

      2. What incentive does an illegal have to register? If they do that, they’ll be taking a tax hit on their income. Not sure there’s a lot of benefit, particularly when the U.S. isn’t deporting many people at all.

    2. OF course not. I am amazed at how disengious the discussion of this has been. The fact that he is giving out green cards and not just saying “we won’t deport you” goes entirely unmentioned.

      And shame on Suddernman for not mentioning that. He should know better.

      1. OF course not. I am amazed at how disengious (sic) the discussion of this has been.

        It’s their standard MO. Recall that Obamacare was promoted as getting healthcare to 40 million uninsured Americans when in fact it was not about healthcare it was about insurance. If you like your policy you can keep it” was as disingenuous / mendacious as hell.

      2. That part I missed. They’re actually going to give resident alien ID, indistinguishable from the standard green card? Wouldn’t that have to be illegal?

        1. They are going to give special Obama cards conferring their new status.

          1. That’s what I thought. Like knowing the mayor could get you out of parking tickets, but not get you a license plate that outlasts his mayoralty.

    3. I keep saying this, but it seems true to me: If he were objecting to the constitutionality of immigration laws and used his independent authority to refuse to enforce whatever parts he viewed as illegal, there’s a constitutional argument in his favor, at least until the courts jump in.

      What he’s doing seems to me to be more akin to legislating without authorization to do so.

    4. “He is also issuing green cards to people who are not eligible for such cards under the current law.”

      No – parents of naturalized children *do* have theoretical legal status that makes them eligible to apply for green cards.

      Its that the process requires them to leave the country and re-apply and wait, uncertain of the outcome.

      what obama seems to be doing is telling INS that ‘skip portion C/7b5’ and go straight to expediting issue of green cards.

      This is what i picked up from reading about this elsewhere. I went and looked at the INS website and it seemed (as much as a government site can be) clear there as well.

      1. I think this applies to a lot more than parents of naturalized children (although that is what he highlighted).

        1. AFAIK – no, its limited to the Messicans Con Chilluns

          thats where they get their ‘4 million’ or so (out of 13) # – although how they guesstimated this is beyond me.

          I think the natural consequence of this? Mexicans gonna be fucking like crazy to make sure they got them a true-MERICAN baby ASAP

  7. Im bored

    1. Why do you hate brown people?

  8. The question about ‘legality’ seems to remind me of how ‘greens’ try to frame debates about climate change policy.

    Either it “is or isn’t” – the assumption being, that if its “legal”, then the underlying question is bypassed.

    [with Climate Change, liberals assume ‘if it exists’ – it most likely does – “Debate” is over! – there is no longer any question *whether* there should be government policy, or whether the proposed policies are good ideas. They aren’t interested in debating policy – instead they’ll pretend to be debating ‘science’]

    Similarly here – if its “Legal” (it most likely is), then that’s that!

    Technical legality isn’t actually the issue.

    Yes- the president does have expansive authority to determine enforcement priorities of existing law. How that can be applied in a Democratic manner is not a binary matter of ‘legal/illegal’ so much as, ‘how its use reflects changing popular will, or *actually works against it* It appears here that the president is effecting ‘legislation by decree’, bypassing congress entirely on an issue where clear national interests at stake, and strong popular opinion contrary to that of the president and his party.

    Whether ‘legal or not’ it evades the more important debate about whether Presidents *should* act entirely contrary to the will of the people. What are the imperatives? Simply saying ‘congress isn’t acting *fast* enough’ is no excuse.

    1. What this highlights is the sheer amount of discretion the administration has. As much as Democrats talk about the will of the people and democratic principles, I didn’t vote for these bureaucrats who promulgate rules, nor do I have much recourse, voting-wise, to affect such regulation. The whole point of placing legislative authority in the legislature is to give voters a means for dealing with laws we don’t like.

      1. Yes – you’re saying the same thing i am I think; which is that (summarizing)

        Discretionary authority should be applied in cases where there isn’t any impetus or need for new legislation, and that popular consensus is behind a *general shift in the application of existing law* – not its wholesale repeal or reform’

        Neither condition applies here – there is widespread agreement that the country needs major immigration reform, and congress previously tried and failed, with great political repercussions for many. This is one major reason that the President *should not* act unilaterally, sans legislation = there is a clear existing sentiment that new legislation is required and inevitable.

        The other being = it is clear that the majority of the public maintains a contrary view to the president’s position. It is the exact opposite scenario of how executive discretionary authority could be appropriately applied.

  9. OT – The Numbers Don’t Lie: Twin Cities Is Best Place for Millennials…..enials.php


    1. What did Mark Twain say about statistics?

      1. “Roll that beautiful bean footage?” or was that someone else?

  10. Just for a change-of-pace, can we discuss the “make Mark Zuckerberg smile and donate more campaign dollars” aspect of these immigration changes?

  11. Keep in mind as we debate this move by Obama.

    We’re reacting to a speech. By now, we know that the gap between what he says and what he does is vast.

    The actual action taken could be a big fizzle and not really make much difference on the ground. Or it could be much more than he announced in this speech, and make a massive difference.

    1. Good point. It could be a whole lotta nuthin’ like John thinks, or it could even be the opposite, and he’ll use this as a smokescreen for doing more.

  12. “Yes- the president does have expansive authority to determine enforcement priorities of existing law”

    My copy of the Constitution (which doesn’t have the FYTW amendment) says, in Art. II “{The president) shall take care that the Laws be faithfully executed.” Where did it arise that it was constitutional for the president to pick and choose when to be unfaithful to aspects of a law with which he disagreed or wanted “updated?”

    1. The supreme court has many times affirmed that the executive branch has some discretionary authority under the ‘faithful execution’ bit to determine the allocation of what are limited federal resources in the application of federal statutes.

      Government cannot apply ‘maximal resources’ to every single statute as written; there is always going to be a prioritization of enforcement of law. Obama is here acting within that framework to specify parts of existing law (illegals w. criminal records) to place greater enforcement emphasis, and other parts (illegals w. naturalized children) on which to provide reduced emphasis and to highlight what are already-extent procedures for allowing those people to apply for green-card.

      i don’t agree with the action taken, but my understanding is that it is consistent how the president can re-order priority with existing law, particularly given that these statutes specifically allow for a degree of latitude in their application.

      CS Monitor has a similar gloss here

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