The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today's federal district court decision striking down President Obama's executive order on immigration has serious flaws. Strikingly, Judge Arthur Schwab attempts to dispose of a complex and important constitutional issue in just three or four pages. In the process, he ignores important weaknesses in his position.
As Jonathan Adler and Josh Blackman (who is sympathetic to the decision on the merits) point out, it is likely that the court did not even need to reach the constitutional issue in this case. Here, I pass over this procedural question and instead focus on the flaws in the court's substantive analysis of the constitutional issue.
Judge Schwab recognizes that the president's action can be defended on the basis of standard prosecutorial discretion, but rejects this approach for two reasons:
President Obama's November 20, 2014 Executive Action goes beyond prosecutorial discretion because:
(a) It provides for a systematic and rigid process by which a broad group of individuals will be treated differently than others based upon arbitrary classifications rather than case-by-case examination; and
(b) it allows undocumented immigrants, who fall within these broad categories, to claim substantive rights.
I addressed the first argument in my Reason article on Obama's order, published earlier today (though written before Judge Schwab's decision became public):
Some argue there is a crucial distinction between case-by-case decisions not to prosecute (as with marijuana possession on campus) and a generalized, systematic policy of not doing so in a category of cases. But that distinction makes little sense…. Unless case-by-case exemptions are to be completely arbitrary and capricious, they must be guided by at least some general principles, such as the considerations relating to the risks posed by letting the offender go and the moral blameworthiness of his conduct. Once the legitimacy of using such principles to guide prosecutorial discretion is conceded-as it must be-then there is nothing wrong with announcing them in advance and applying them as general rules. If lower-level federal prosecutors and immigration officials can apply such principles, then their superiors-including the president-can issue orders requiring them to do so in a consistent and systematic way. Such systematization helps ensure that like cases are treated alike, as opposed to permitting differential treatment at the whim of individual low-level decision-makers.
Ultimately, there is no principled distinction between "case-by-case examination" guided by general principles and what Judge Schwab derides as a "systematic and rigid process." The latter simply generalizes the former and ensures that it is applied consistently. Schwab complains that generalized "threshold criteria" will "almost wholly determine eligibility" for deferred deportation under the president's order. But any exercise of prosecutorial discretion—no matter how "case by case" it may be, must include consideration of criteria that end up wholly determining the outcome. That's the whole point of using criteria in the first place.
Unfortunately, Judge Schwab fails to even consider the possibility that the key distinction he relies on might be unsound.
If the Supreme Court were to adopt Judge Schwab's reasoning, federal law enforcement agencies would be barred from issuing general systematic guidelines about how their officials should exercise prosecutorial discretion. The exercise of discretion would then become arbitrary and capricious. Alternatively, perhaps they could still follow systematic policies, so long as those policies were not formally declared and announced to the public, as the president's order was. Neither possibility is particularly attractive, and neither is required by the Constitution.
Judge Schwab's second argument is little better than the first. The "substantive rights" Judge Schwab refers to are rights to work in the United States. He claims that the grant of these rights transforms undocumented immigrants into "quasi-United States citizens" such that the status given them by Obama's order can no longer be "terminated at any time," as can a regular exercise of prosecutorial discretion. But the fact remains that Obama or a future president can terminate both the executive order and the associated right to work any time he wants. If that amounts to "quasi-citizenship," then citizenship may not be all it is usually cracked up to be. Indeed, the right to work is itself just another exercise of prosecutorial discretion, since it amounts to a decision not to prosecute these individuals and their employers for violating laws forbidding the hiring of undocumented immigrants.
Judge Schwab also worries that, because Obama's policy is justified by humanitarian concerns for family unification, "any rescission" of the policy "by legislation or withdrawal by another Administration," would be "arguably unjust, as it would violate core American familial values to abruptly deport these individuals [who]… have been allowed to deepen already existing ties to their lawfully present American family members and the wider community."
I completely agree that such a rescission would be both unjust and and in violation of core American values. But that reality in no way makes Obama's action unconstitutional. The exercise of prosecutorial discretion often occurs in cases where it would be unjust to reverse it later. Moreover, many of the people covered by Obama's order already have strong "ties to their lawfully present American family members and the wider community." As Judge Schwab notes earlier in his opinion, Obama's order applies only to people who have continuously resided in the United States since before 2010, and have children who are US citizens or lawful permanent residents. If it would be "arguably unjust" to deport these people after a rescission of Obama's policy in the future, it would already be unjust to deport them now.
However flawed its reasoning may be, today's ruling is still a success for opponents of Obama's plan. The fact that at least one federal judge endorses their position gives it some additional credibility. Numerous state governments have filed a lawsuit challenging the plan. The involvement of the states does not by itself prove that the constitutional arguments against the order are sound. But it does mean that those arguments cannot be dismissed as outliers supported only by a few extremists. The legal battle over this issue is only beginning.
UPDATE: I should add that Judge Schwab's extensive quotation of earlier statements by President Obama claiming he he lacks the kind of authority he exercised in the November 21 order adds little to his argument. Like many politicians, Obama often changes his position when it becomes politically convenient to do so. Such flip-flopping may be deplorable; but it says very little about the constitutionality of the president's actions.
UPDATE #2: In the post I say that Judge Schwab tries to dispose of an important constitutional issue in just three or four pages. His discussion of the constitutional issue actually takes up about 4.5 pages, so one can argue that I am selling him short. However, the first third of the discussion focuses on President Obama's political rhetoric to the effect that he had to act because Congress refused to do so. The judge is absolute right to conclude that congressional inaction cannot make otherwise unconstitutional presidential actions legal. But few if any serious legal defenses of Obama's action rely on this weak argument. Regardless of exactly how we count the pages, Judge Schwab devotes shockingly little space to the key question of prosecutorial discretion, and what little he does say is far from compelling.