Why Obama's Immigration Policy Is Constitutional

Obama's immigration order does not undermine the rule of law-but the expansion of federal criminal law does.


President Obama's recent order deferring the deportation of up to 5 million undocumented immigrants has led to enormous controversy. Many, especially on the political right, argue that it undermines the rule of law. The president, they contend, is required to enforce federal law as written, not pick and choose which violators to go after and which to exempt based on policy considerations.

In reality, Obama's actions were well within the scope of executive authority under the Constitution. In a world where authorities can prosecute only a small fraction of lawbreakers, all presidents inevitably make policy choices about which violations of federal law to prosecute and which to ignore. Such choices are inevitably affected by policy preferences. Obama's decision to defer deportation is in line with those of past presidents. And if any lawbreakers deserve to benefit from prosecutorial discretion, immigrants fleeing Third World poverty and oppression have a particularly strong case. Moreover, at least under the original meaning of the Constitution, the constitutionality of the immigration laws that Obama has chosen not to enforce in some cases, is itself suspect.

Nonetheless, Obama's actions do highlight the alarming growth of executive discretion in the modern state. The reach of federal law has grown so vast that no administration can target more than a small percentage of violations, thereby unavoidably giving the president broad discretion. That problem did not begin with Obama, and will not end when he leaves office. It can only be effectively addressed by cutting back on the enormous scope of federal law.

Why Obama's Use of Executive Discretion Is Not Illegal

Because of the enormous scope of federal criminal law, presidents routinely exercise extraordinarily broad discretion in deciding which violations to prosecute. Far more violators are ignored than punished—or even investigated. To take just one of many examples, for decades federal law enforcement officials have almost never prosecuted the possession and use of marijuana on college campuses, even though such possession is clearly forbidden by the Controlled Substances Act. By doing so, they have let many millions of federal criminals off the hook, including the last three presidents of the United States, each of whom probably used marijuana in their college days. The total is likely far greater than the number exempted from deportation by Obama's policy.

Article II of the Constitution states that the president must "take Care that the Laws be faithfully executed." But that requirement does not mean that the president has an absolute duty to prosecute all violations of federal law, or that he cannot choose which ones to pursue based on policy considerations. If it did, virtually every president in the last century or more would be in violation.

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. After, all, case-by-case decisions are often driven by policy considerations, such as the harm caused by the violation in question and whether federal resources might be better employed elsewhere. 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.  

At the very least, there is no meaningful difference between a de facto policy of exempting a large category of violations from prosecution (as with marijuana possession on campus) and a more explicit, formal decision to the same effect. If anything, the latter is preferable because it is more transparent and more readily subject to public scrutiny and debate. Because the exemption of campus marijuana users from prosecution has arisen gradually, without any clear formal decision, it has not generated nearly as much public scrutiny and debate as Obama's order—despite the fact that it lets far more lawbreakers get away with their offenses.

Some critics of formal announcements claim they are worse than unannounced policies because the former encourage future lawbreaking by putting potential offenders on notice that they will not be prosecuted. But college students interested in experimenting with illegal drugs are well aware that there is virtually no chance that they will prosecuted under federal law for possessing marijuana on campus. If anyone is being kept in the dark here, it is the general public beyond the campus walls.  

In addition, the people covered by Obama's order are hardly in the clear. The deferral of their deportation may be reversed at any time, either by Obama himself or a successor. Obama was only partially right when he famously claimed that his order allows those it protects to "come out of the shadows." They can still be forced back into the shadows at any time.

Obama is far from the first president to exempt large numbers of illegal immigrants from deportation. Past presidents such as Ronald Reagan and George H.W. Bush, have done so as well, including some 1.5 million people in the case of Bush. That does not by itself prove that Obama is acting legally; perhaps Reagan and Bush were undermining the rule of law as well. But it does at least provide an important precedent, especially since few in either party claimed that the prior administrations' actions were illegal at the time they were done. In this field, Congress itself has delegated wide latitude to the president, which makes the exercise of discretion even less problematic than in many other cases where the law is written in a more categorical way.

Some argue that George H.W. Bush's decision to exempt some 1.5 million illegal immigrants from deportation in 1990 is different from Obama's decision because the former exercise of discretion was authorized by Congress in the 1986 Immigration Reform and Control Act, which gave the president authority to preclude deportation in cases where doing so would "assure family unity." But as the administration's Office of Legal Counsel points out in its memo defending Obama's actions, other federal laws give the president authority to forego deportation more generally, including cancellation of removal. In Arizona v. United States (2012) the Supreme Court interpreted existing immigration law as giving the executive branch broad authority to defer deportation for humanitarian reasons. The Court noted that "[a] principal feature of the removal system is the broad discretion exercised by immigration officials" in deciding  "whether it makes sense to pursue removal at all," including by considering "human concerns" such as the fact that many "[u]nauthorized workers" are simply  "trying to support their families" rather than committing  a "serious crime."

To the extent that large-scale use of prosecutorial discretion is ever appropriate, it is surely so in the case of helping people whose only violation of the law is fleeing poverty and oppression under terrible Third World governments. Few other offenders have such a compelling moral justification for breaking the law. At the very least, if it is permissible to use executive discretion to forego prosecution of millions of college students who illegally used marijuana on campus, there is a much more compelling case for using it to spare people whose only illegal action was fleeing terrible conditions in their home country, and seeking employment with Americans willing to hire them.

I strongly support the legalization of marijuana and the abolition of the War on Drugs more generally. But illegal immigrants violating the law to escape Third World conditions are considerably more deserving of our compassion than college students violating it to experiment with marijuana for recreational purposes. If exemption from prosecution is acceptable for the latter, the same goes for the former, too.

Dangers of Excessive Discretion and the Overexpansion of Federal Law

There is a danger that wide-ranging presidential use of prosecutorial discretion can result in abuses of power. Indeed, such abuse is almost inevitable in a world where the scope of federal law is so broad that most Americans have probably violated it at one point or another, but only a few are ever likely to be investigated and prosecuted. But that problem existed before Obama's new policy and the president did not make it any worse than it was before. Long before Obama, presidential administrations unavoidably had to make broad discretionary decisions about which of the many violations of federal law out there were worth prosecuting and which ones were not. And long before Obama, those decisions were influenced by policy and moral considerations.

Some worry that discretion-based defenses of Obama's order gives the president so much discretion "that no president would ever be in violation" of the Take Care Clause of the Constitution, which requires that he "faithfully" execute federal law. Not so. A president who uses executive power to harass people who haven't violated any law would be in violation of the duty to "faithfully" execute the law on the books. He would also be in violation if he chose targets for prosecution not based on the severity or importance of the crimes they committed but based on personal animus towards the accused. The president would also violate the Clause if he attempted not only to refrain from prosecuting violators, but to decree that they had not violated the law at all, thereby precluding future presidents from going after the perpetrators as well. Obama has arguably done the latter in the case of his Obamacare waivers; but he did not do it in his immigration executive order.

The president also cannot use his discretion in ways that threaten individual rights protected by the Constitution. For example, he cannot choose which offenders to prosecute based on the race, sex, religion, or political views of the potential defendants. The IRS' selective targeting of conservative and Tea Party-aligned groups was illegal because they were targeted based on their exercise of First Amendment rights.

There are non-constitutional limits on executive discretion as well. For example, Congress can earmark funds for particular types of enforcement. If the executive branch agency does not spend the money as Congress wants, it could forfeit the funding entirely. Congress could even condition funding for an agency based on its undertaking some enforcement actions or refraining from others. For example, it could adopt a law that cuts the budget of the relevant agency unless it deports X number of illegal immigrants in a given year or prosecutes Y number of marijuana possession cases.

These limitations still leave room for a tremendous amount of executive discretion that is readily subject to abuse. Given the current enormously broad scope of federal law, almost all of us are potential targets for prosecution by federal officials. In his book, Overcriminalization: The Limits of the Criminal Law, legal scholar Douglas Husak cites data indicating that there are over 3,000 different federal crimes on the book, and over 300,000 federal regulations enforceable through criminal penalties at the discretion of administrative agencies. Criminal defense lawyer Harvey Silverglate calculates that the average American commits three federal felonies per day.  The power to decide which of the many federal criminals to go after is easily abused, and easily used to treat one category of offenders more favorably than others.

The danger is exacerbated by the fact that Congress has enacted numerous laws that neither the political elite nor mainstream public opinion really wants to enforce to the hilt. If the DEA were to launch massive sting operations to root out marijuana use on college campuses, there would be a huge outcry. Similarly, majority public opinion probably could not stomach the draconian measures that would be necessary to round up and deport all or most of the 11 million illegal immigrants currently in the country. The reality that neither Congress nor the public really wants anything approaching comprehensive enforcement of these and many other federal laws creates further opportunities for executive branch selectivity.

The best way to fix the problem of excessive discretion is to reduce the scope of federal law to the point where the federal government has the resources to go after a much higher percentage of violations. We can also reduce it to encompass a much narrower range of offenses, hopefully only those for which there is a broad bipartisan consensus that they really are serious crimes deserving of punishment—and punishment that must be meted out by the federal government rather than by the states. That way, presidents will hesitate to forego enforcement of the remaining federal laws, because doing so will result in paying a high political price.

The Originalist Case Against Immigration Restrictions

The immigration laws covered by the president's executive order may go against the original meaning of the Constitution. Under the original understanding, Congress did not have a general power to restrict immigration. The detailed enumeration of congressional powers in Article I of the Constitution does not include any power to restrict migration as such, even though it does give Congress the authority to make laws concerning the "naturalization" of foreigners and "regulate Commerce with foreign Nations." The Naturalization Clause does not create a power to prevent foreigners from entering the country, but merely allows Congress to set conditions for the grant of citizenship. In the 18th century, as today, foreigners sometimes resided in the United States without becoming citizens.

The scope of the power to regulate "commerce" has long been a source of controversy. But at the time of the founding and for many decades thereafter, the dominant interpretation was that it merely gave Congress the power to restrict trade and other commercial transactions, not to forbid movement as such. The Commerce Clause also gives Congress the power to regulate interstate as well as international commerce. Yet few if any 18th and 19th century jurists would have argued that Congress therefore had the power to forbid Americans from moving from one state to another.

Congress can restrict the entry of some foreigners by using its other enumerated powers. For example, the power to declare war and to spend money for the "common defence" includes a power to forcibly restrict entry by enemy spies, terrorists, and soldiers. The power to "define and punish" offenses against "the law of nations" enables Congress to restrict the movement of pirates and other violators of international law. But Congress has no general power to ban the entry of people simply because they are foreign nationals.

None of this should matter much to adherents of "living constitution" theories of legal interpretation. It also should not matter to those who believe that the Constitution generally means whatever Supreme Court precedent says it means. Immigration restrictions have been deemed permissible under longstanding precedent dating back to 1889.
But it should matter to those who consider themselves constitutional originalists, which includes many of the conservatives who have been most vehement in opposing Obama's actions today. If you believe that the Constitution should be interpreted in accordance with its original meaning, and that nonoriginalist Supreme Court decisions should be overruled or at least viewed with suspicion, then you should welcome the use of presidential discretion to cut back on enforcement of laws that themselves go against the original meaning.

There is much to object to in the Obama administration's approach to constitutional interpretation. In too many instances, the president really has acted illegally and undermined the rule of law—most notably by starting wars without congressional authorization. But the immigration decision wasn't one of them.

At the same time, Obama's critics are right to worry that the scope of presidential discretion over law enforcement has become dangerously broad. The best way to combat that troubling trend is to narrow the scope of federal law.

This article was adapted from posts at the popular Volokh Conspiracy blog, where Ilya Somin is a regular contributor, and a guest post at the Open Borders blog.

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  1. Because there’s so much federal law,he can pick and choose?Can cops do the same?I’m not getting into the illegal debate,but,does it occur to him there are too many laws and too damn many federal power plays in everyday people’s live? We live in a world where having cash is a crime .No I can.t read all this drivel

    1. If this is true, then what is “legal” and what is “illegal” becomes unimportant, no?

      Lawyers are basically now saying they have the re-made the monarchy, and that they’re kind of irrelevant in some way.

      If law does not protect me, and it is so vast that it allows the executive to find a way to do whatever it wants, then lawyers are useless, and I need to speak to my bundler instead.

  2. In a world where authorities can prosecute only a small fraction of lawbreakers, all presidents inevitably make policy choices about which violations of federal law to prosecute and which to ignore. Such choices are inevitably affected by policy preferences.

    This part here, in a sane world, should result in a conclusion that there are far too many unenforceable laws on the books, mostly defining victimless crimes, and that our vast commitment to spending on law enforcement is a vain attempt at controlling people who do not wish to be controlled. Such a situation can lead only to selective enforcement where the politically disfavored can be punished on a whim, and the well connected can be assured of little chance of prosecution.

    All the rest is fluff.

    1. +111111

    2. Rats, you beat me to it.

    3. Agreed. That is the real point. Excusing presidential overreach because there are too many laws to enforce is statism at its finest.

      1. Or the type of bullshit one expects from the totally worthless legal profession

  3. OT: Video shows ‘pitbull-like’ Texas police officer using Taser on 76-year-old man TWICE after pulling him over for expired inspection sticker.

    The officer went after the guy after he walked to the back of the car to show the cop the dealer plate which exempts the car from the registration sticker requirement.

    1. I guess all those after school specials were right: deep down, bullies are scared

  4. Of course, the Constitution requires the President to faithfully execute the laws, because the founders didn’t like the fact that the King would pick and choose which laws to enforce or ignore, depending on his whims and who he favored. The Constitution specifically denies the president the discretion to selectively enforce laws for a good reason.

    1. But he has a J.D.,so,he says it’s ok! That paper is old and yellow and written by white guys!

    2. Except, of course, if Congress doesn’t give the executive the money to enforce the laws. Let’s say Congress passes a law to carry the mail from Boston to
      Richmond and provides $1 in funds to do so. No one could fault the president from not establishing the mail service.
      So, perhaps if Congress wants to deport every last “illegal immigrant,” they should provide the funds to do so and the president would have no excuse to not faithfully execute the law.

      1. Congress can do that. But that is a case of Congress deciding not to enforce a law. That is different than the President doing so because Congress is supposed to be the ultimate source of power, not the King, I mean President.

      2. 1) DHS is funded. They have increased funding for border control.

        2) We just spent 80,000 / kid to keep those 60,000 kids on bases. That covers a first class flight home to Tegucigalpa (sp?) then they release these kids in various cities after flying them there, and give them “permisos.” This sounds like some misplaced priorities.

    3. I don’t disagree with you, but I’ve seen it argued recently (by a “conservative”, not a libertarian) that leviathan has grown so huge that it is now ungovernable. When you look at the number of laws that were previously managed by the President and 535 congressman and compare it to today, it’s mind blowing.

      1. It’s blowing alright ,but,it’s not you mind.

  5. “”””To the extent that large-scale use of prosecutorial discretion is ever appropriate, it is surely so in the case of helping people whose only violation of the law is fleeing poverty and oppression under terrible Third World governments.”””

    I have no moral responsibilty to any of these people. And certainly they have no right to my tax dollars which is what will happen if they are made legal

  6. How about this part of the Constitution?

    Article IV, Section 4 of the U.S. Constitution

    “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against invasion

    1. So,whose invading?Like my great grand father who escaped the Irish famine? Or Jews form ‘he who shall not be named’ rule? Maybe the Chinese who worked on the railroads? Or poor people fleeing a U.S inspired drug war down south?

        1. Then hie thee back to where your ancestors came from. Everybody is an invader in that line of thinking.


        It seems growing numbers of illegal immigrants fancy themselves as exactly that. Or rather, that previous establishment of southwestern US states and borders amounted to an invasion and occupation, so they re-invasion is justified.

  7. The naturalization clause argument is one of the more disingenuous ones out there. It is not so much that it doesn’t have a point, it does. If you want to read the Constitution strictly, it doesn’t say that Congress has the power to restrict entry of foreigners into the country. That is good as far as it goes. What the open borders advocates who make this argument never mention is that if Congress doesn’t have that power, the states do. If we want to go all originalist, lets not stop at the naturalization clause. Let’s go all of the way to the 10th Amendment. It says

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

    Nowhere does the Constitution restrict the states from blocking entry of foreigners into their states. Indeed, the naturalization doesn’t mean block entry argument only makes sense in the context that blocking entry is a police power and the states not the feds have general police power. So all of the open borders “originalist” types who think the naturalization clause doesn’t mean Congress has the power to restrict entry, need to explain why then Texas and the other border states don’t have the power to do so. That never is explained because open borders people don’t give a fuck about the rule of law or the Constitution, they just want their pony.

    1. Yeah, this subject makes Somin retarded.

  8. Shouldn’t we be pulling for stupid and unjust laws (in this case, requiring government agents to waste time and resources hunting down and then deporting people whose only crime was walking across an imaginary line without a permission slip from the State) NOT to be enforced?

    What if, say, President Ron Paul decided to shut down the DEA and cease enforcing federal drug prohibition? Would that be executive tyranny as well?

    1. exactly

    2. No we shouldn’t. “Unjust” is in the eye of the beholder. You assume that this will only happen with laws you don’t like. Sorry, it doesn’t work that way. What will happen is it will work with whatever laws current President doesn’t like or sees some advantage in not enforcing.

      Allowing this to stand effectively gives every new President a veto on every law in the books. That is rule by tyranny not law or democracy. Just because you happen to like this variety of tyranny doesn’t make it any less tyrannical. You can use tyrannical means to achieve good results. The problem is that once such means are legitimized, they will inevitably be used for bad results.

      To put it another way what you are really saying is “shouldn’t we be for telling the majority of the country who supports these laws and voted for elected representatives who wrote them and a President who took an oath to uphold them, to go fuck themselves because we think the laws are unjust?” That is really what you are saying. And you and a lot of other Libertarians think it is great to tell those people to go fuck themselves because you don’t like them and you don’t like their laws. Have fun with that but also understand those people might not like that and you are handing them the sword upon which to take their revenge. Also, you are effectively poisoning the well and ensuring anyone who is not open borders today is unlikely to be in the future.

      1. Methinks you have just rebutted the entire article. Faithfully means exactly that. Premeditated excusing of one set of lawbreakers over another set is tyranny, too.

    3. So you want to roll the dice on dictatorship, in hopes that one day your libertarian dictator will seize power?

    4. We shouldn’t be asking that stupid and unjust laws be left dormant on the books, no.

      We should be demanding that they be repealed or amended.

    5. Rule of law is pretty important. I’d place it far above open borders.

      You do not get rule of law by ignoring large swathes of it.

  9. I normally find myself in agreement with Prof. Somin but there are some glaring holes in this argument. First, this isn’t just about not kicking people out of the country. The President is extending public benefits to these individuals at taxpayer expense. Second, and related, Prof. Somin acknowledges that only Congress has power over naturalization of aliens. It seems to me then that benefits derived from the public treasury are, if not explicitly restricted to U.S. citizens, then must at least require Congressional action to be extended to non-citizens. Third, this “H.W. gave reprieve to 1.5 million” factoid is hokum (check the WaPo Pinocchio Meter and other sources). Fourth, if memory serves, prior presidential waivers were essentially quasi grants of asylum due to political oppression. Where is there support for a generalized “your own economy sucks, come here for free shit” rationale? Finally (not really, there’s more to pick apart), as his primary support, Prof. Somin continuously falls back on “we have so many laws that the only way the chief executive CAN do his job is to be selective…and plenty of presidents have done just the same thing.” What government has done previously does not make that thing constitutional.

    1. Where is there support for a generalized “your own economy sucks, come here for free shit” rationale?

      There isn’t. IN fact economic hardship is specifically listed in the law as a reason NOT to be eligible for asylum. Libertarians are proving themselves to be as unprincipled and nasty and in love with power as the Progressives on this issue. Somin is smarter than this. He knows better and doesn’t give a fuck because he likes the result.

      1. Also, the asylum system is a well-known scam.

        But whatever, the results are “libertarian” so it’s all good! That won’t EVER bite anyone in the ass. When President Santorum takes power.

        1. (furiously penguin-walks to bathroom to vacate his watery bowels)

        2. Even libertarians aren’t immune to “end justifies the means” disease.

        3. Australia just had a lesson on why maybe its not a good idea to accept just any old asylum seeker.

        4. As a libertarian, I am for more open borders and freer trade. However, unchecked immigration is not compatible with a welfare state (which as a libertarian, I also oppose). Since we have a welfare state, at this point I concluded that I have to oppose unchecked (illegal) immigration.

          I would most certainly be in favor of a rational legal route for workers, even including unskilled workers, to come here and work. My own feeling is to put into place a one-time 5-year work-permitted visa that allows a non-citizen to come here and work here for that period of time (with certain limitations; e.g., no convicted criminals). During that time, however, they would not be eligible for welfare benefits of any kind nor would any children of visa-holders become citizens (even if born here during the visa-holder’s time here). They could apply for citizenship during that period (but overstaying that visa would disqualify one from citizenship).

          However, any action that results in amnesty for criminals (as all illegal aliens are certainly criminals almost by definition) is to be soundly opposed.

      2. ” Libertarians are proving themselves to be as unprincipled and nasty and in love with power as the Progressives on this issue.”

        Reason and it’s writers are showing themselves to be on this issue. They are not all libertarians.

    2. There might be an argument for prosecutorial discretion, but I can think of any that would make it OK for the executive to money or work permits to people that the law says are not qualified to receive them. That would be directly in contradiction of the law.

  10. I’m really surprised at the animosity in this thread.

    Prosecutorial discretion is a well-established practice for the feds and states. It is born out of necessity, policy, and common sense. If a President decided to have an explicit policy of not enforcing federal drug prohibition, I doubt there would be opposition to that policy here. When the administration enunciated its policy of restraint for Colorado and Washington, most here applauded that move and complained it didn’t go far enough.

    I also suspect many here support the idea of jury nullification. Prosecutorial discretion is like pre-emptive nullification performed by the state itself. Any action by the state to reduce its power and reach is welcomed by me, especially for victimless “crimes”, such as simple existence on one side of a line on a map or the other.

    As far as the issue of immigrants receiving federal aid is concerned, yes this is wrong. I consider almost all Federal welfare to be unconstitutional and immoral. So, it matters not who gets it. Regardless, it has been shown that the specter of immigrants coming here for welfare has been overblown. In states like Texas without an income tax, immigrants pay almost the same taxes as everyone else.

    I’m mystified by this animosity to immigrants. All I think is that peaceful people that aren’t initiating force against others should be left alone by governments.

    1. “…it has been shown that the specter of immigrants coming her for welfare has been overblown.”

      I’d appreciate a citation for this assertion (not trying to be a dick, genuinely interested in the data if it exists).

      Unfortunately, whether immigrants are motivated to come here for benefits is immaterial. They are receiving them. I’m 100% with you that law-abiding, peaceful people should be left alone by government (and largely with you that all federal welfare should be abolished). Unfortunately, we aren’t being left alone. We’re being forced to pick up the tab for what is pretty clearly a cynical voter grab. And even if we banned federal welfare tomorrow it wouldn’t necessarily mean individuals should be rewarded for flaunting existing laws that other hopeful immigrants followed in their desire to become U.S. citizens.

      I also take a bit of exception to your jury nullification analogy. With a jury, power is diffused among 12 (sometimes 6 or 9) individuals that ostensibly better represent the people as opposed to an agent of the state that is susceptible to political whimsy. I certainly don’t mean to over-glorify the sanctity of the jury, I just think it’s a whole in your comparison.

      1. “Whole” = “Hole”

        Brain no werk gud.

      2. Catatafish, asking for a cite is perfectly legitimate, but I need to work on getting that. I know I’ve read about it in several places, and I think Reason may have had a couple articles about it.

        You say “law-abiding, peaceful people should be left alone by government”. My issue with this statement is “law-abiding”. The law has little to do with right and wrong. There are many cases where abiding by the law is either morally neutral or morally wrong. This is one of the foundations of jury nullification. So, I strike “law abiding” and put something clumsy like “non-force initiating” in its place.

        We’re being forced to pick up the tab for a huge number of things the feds do that are unconstitutional, ineffective, or harmful. Immigrants receiving welfare or other benefits is morally indistinguishable from anyone else receiving benefits. So, why this out of proportion reaction to the idea that immigrants are getting benefits? It exposes some type of opposition to immigrants that comes from unprincipled thinking, I believe.

        1. FR,

          Fair point on “law-abiding” (lord knows we have too many to abide by). I may suffer some slings and arrows for this (or maybe a NTS) but I’m not above granting asylum to political refugees that are legitimately fleeing an oppressive government. What I’m not in favor of, and as we discussed above, is adding millions of more people to the “take our stuff” list simply because they can’t get their own country’s act in gear economically.

          In regards to those on the dole here at home, you can count me among those that believe that unless you pay in an equal proportion of taxes, you don’t get to vote (obviously predicated on a flat tax being implemented). I don’t think the majority of people opposed to immigration are doing it out of nativist tendencies. I think we see it as just exacerbating the existing problem.

      3. I would once have thought that any libertarian would understand that not wanting anyone who feels like breaking the law to come into your place and use you stuff and live off your labor isn’t “animosity”

        But I would have been wrong.

        1. Careless, your statement “use your stuff and live off your labor” makes no sense.

          I think you’re making the assumption that a majority of immigrants come here, don’t work, and live off of welfare. But that is simply not true. Try these:


          Also, your concept of “your place” is collectivist thinking.

          1. Yes, we’re all “collectivists” at some level. You like to keep them out of your house. I understand that my environment is somewhat larger than the edge of my property, and would like to keep it nice.

            And you suck at assumptions.

      4. There no such thing a “law-abiding” illegal aliens.

        It is certainly true that many of the illegal aliens have been in this country for some time, working hard and trying to be a respectable part of the community. But the fact remains that they are constantly violating any number of laws and an amnesty for illegal aliens implicitly forgives these violations.

        If I violated the same laws, I’d be fined thousands of dollars and put into prison for several years.

        First they knowingly and with forethought violate any of several immigration laws when they enter this country: they come without visas, they do not come through a legal port-of-entry, they bypass customs, they are not registered and fingerprinted as required by Title 8 of Code of Federal Regulations (8 CFR).

        Once they are here, they are likely to continue to violate other laws. Fraudulent papers are used to obtain work. This may include Social Security numbers and related documentation, falsified work visas, and so on. In this case, it seems that Title 18 Section 1028 “Fraud and related activity in connection with identification documents, authentication features, and information” should come into play.

        And there’s always ? 1324. Bringing in and harboring certain aliens. Just driving a known illegal immigrant in your car subjects one to punishment “by death or imprisoned for any term of years or for life, fined under title 18, or both”.

        1. You call yourself a libertarian, so I find your appeal to authority here surprising.

          Laws designed to control immigrants also control citizens. Do you think that in a free society people should have to obtain “papers” to be allowed to obtain work? Do you think we all need to have social security numbers to be free? That I should be subject to the death penalty for driving someone around?

          Almost all the things you listed have come about because of the idiotic and labyrinthine immigration system we have. The system should not be supported and legitimized by uncritical obedience.

          Most of what you listed is a victimless crime or fraud to get around unconstitutional or unjust laws. Do you support the prosecution of victimless crimes? Do you support the idea of jury nullification? If I was on a jury trying a violation of most the laws you list, I would nullify without hesitation.

    2. Regardless of if they receive welfare, they collectively reduce the wages of existing Americans by flooding the labor market. The end result is the erosion of the tax base. The same people crying to let these people stay are the ones who want to raise my taxes to make up for the tax shortfall the illegals are helping create.

      1. So, you want protectionism to prop up the price of labor.

        Do you support protectionism to prop up the price of sugar or rice? If not, why not? If yes, at least you’re consistent.

        1. Citizenship is now “protectionism”.

          It’s no wonder you guys will never get any traction in society. Citizens also have responsibilities under the law.

          So people like you would have citizens have all the responsibilities but anybody else from around the world can come in and get the benefits without the responsibilities, making citizens second class people in their own country.

          Yeah, that is a policy that works.

          1. MarkinLA, you specifically mentioned the price of labor, you didn’t say anything about citizenship. You didn’t answer the question about sugar and rice.

            What do mean by “get the benefits without the responsibilities”? I’m specifically wondering about “responsibilities”.

            1. If Congress declares war or institutes the draft and puts my age group in it, I have to register. Nobody else. Anybody whom isn’t a citizen is free to leave the country without fear of being prosecuted. Only people who have green cards and want to fully become citizens would likely have to register as well.

              1. Well, I oppose the draft and registration, so it doesn’t bother me that some people easily escape these laws.

                To me, responsibilities go toward society and not government. So, support yourself, be productive, don’t hurt others, things like that. Governments have to step in for defensive purposes if some of those responsibilities are not met.

        2. Actually, I would have tariffs to keep Americans working. The best way to create an orderly society where we don’t lock people up for petty crimes is to have as many citizens working at jobs that pay them enough to live and support their families without going on welfare.

          What somebody “earns” is largely an illusion anyway. The reason why a burger flipper only gets 8 dollars an hour isn’t because that is “all he is worth” it is because there is always another illegal who will take that job for 8 dollars. Is the lawyer “worth” 500 dollars an hour because somebody will pay him that or because no lawyer will work for less than that?

          Libertarians are just as stupid about the society as economists. The whole of society isn’t about just low prices, low wages and GDP.

          1. Most libertarians don’t support or oppose various price levels. We just acknowledge the laws of nature; that is, prices generally reflect the natural law of supply and demand. Governments make many attempts to control this law of nature, with almost always bad results.

            I doubt that in the fast food industry illegals are the primary source of the ceiling on wages. It’s mostly teenagers and low-skilled citizens doing it. The supply of people who can flip burgers is enormous compared to the supply of people who can be lawyers.

            Alas, we’ll have to agree to disagree on tariffs and protectionism. These are large abridgments of economic freedom and are harmful to prosperity.

            1. This assumes that the political entity you freetrade with has the same principles as you do.

              If you freetrade with a civilization whose stated goal is to bred a slave race and rape them to death and use them as soylent green, would you find it morally neutral to export S & M gear and cutlery to them, at price? (enables evil) Would you freetrade with a civilization with sweatshops? (enabled evil there, imports evil employment conditions to same-industry in-country competitors)

              Trade is not morally neutral. You have to consider what your economic patronage enables.

              Free-trade with politically immoral entities is itself immoral. Restricted trade is then moral.

              Free-trade with politically moral entities is morally neutral. Restricted trade is then immoral.

              Most of you understand this on some level, because you object to govt taxation for the purpose of its more immoral goals. Your economic activity thus enables govt corruption. Maybe your personal choice of employment is the best alternative in a bad world, but there are viable alternatives to free-trade, employment and taxation has no viable alternatives in this country, as wesley snipes discovered.

              Free-trade isn’t bad when its applied to good neighbor countries. Just like respect/trust/love isn’t bad when it’s applied to good people. Applying the wrong thing to an entity is a wrong. You shouldn’t trust Charles Manson, but trust is a good thing. So with free-trade.

              1. Trust is good, trusting charles manson is evil. Free-trade is good, free-trade with economic-bondage countries is evil.

                It’s not confusing unless you are being intentionally dense.

        3. So, you want protectionism to prop up the price of labor.

          If I’m responsible, as I am, for supporting people who don’t make “enough” money? Yes!You don’t have to like the welfare state to have to live under its requirements. It’s real.

          1. Your contention that you support hoards of illegals on welfare is wrong.

            Are you sure you would want the Federal government trying to control the price of labor? Do you actually think that would work?

            1. I’m sure they’re already in that business. And your contention that I was wrong about a contention I didn’t make was stupid.

        4. I was once asked: “Let me put it to you in this sense, let’s say we deport all 10.8 million immigrants without documents, but we also provide a legal way for other immigrants, not those 10.8, but a whole new set, to come in easily and legally. Would you sit idly by if another 10 million Mexicans entered the country legally? How would that make you feel?”

          Yes, I would support that operation entirely, with a few minor provisos. First, I’d support, say, a 5-year work visa that is non-renewable (but during your work-visa period you are free to apply for citizenship) for as many unskilled laborers as may be needed. The work-visa holders would have to otherwise comply with all applicable labor law (taxes, minimum wage, OSHA training, etc.), and any felony offense (and certain misdemeanors, as may be decided) voids the work visa. Second, children born to work visa holders are not US citizens, but rather citizens of the country of their parents. And finally, work-visa holders are not eligible for any social welfare benefits.

          1. mpercy, do you really support the idea of a federal government big and powerful enough to round up 11 million people and expel them? A federal government that decided, “we’re really going to do it this time!”?

            Can you imagine what that would entail? There would be massive violations of the 4th Amendment that would make the drug war look like a pee-wee baseball game. There would be internal checkpoints all over to ask for your papers. There would be huge interference with businesses, with probably something like a federal government monitor to review hiring decisions and current employee rolls. There would be detention centers built around the country to house the deportees as they are processed. There would be a strain on the welfare system as families are broken up. There would be a lot of “cooperation” between state and federal authorities that would further weaken state autonomy. There would be no one left to spread mulch on my front landscaping while I watch in monocle and top hat. And much more.

            These new powers would not go away.

    3. Prosecutorial discretion is a well-established practice for the feds and states.

      Properly understood, it is exercised on a case-by-case basis by actual, you know, prosecutors.

      Blanket waivers or suspensions of the law given to entire classes of people is not prosecutorial discretion.

      1. Ok, let’s accept your assertion. Do you support the Obama administration’s policy of restraint wrt to Colorado and Washington? If you do, how to do you square that with your assertion?

        1. They’re not asking people in Colo. or Wash. to sign on to a list.

          1. Robert, you’re right, there are aspects of Obama’s move that are wrong if they create “positive” outcomes, like causing the government to do something in contravention of existing law. I admit that I need to learn more about those parts.

            But, I am talking only to the part where the administration promises not to prosecute/deport certain classes of people.

            1. But they don’t promise to deport fewer people overall, and my understanding is that it’s going to be a signup process that creates the class of people who won’t be deported (for now). It’s not a predetermined class, it’s a class which, subject to certain criteria, is to be created.

        2. I accept restraint wrt Colorado and Washington because it is consistent with the preferences of the majority if those state’s (voting) citizens. What Obama is doing with immigration does not reflect the preferences of the people, or Congress for that matter.

  11. The author confuses the necessary prioritization of enforcement due to resource constraints with an outright refusal to enforce the law, and Reason embarrasses itself by promoting this view.

  12. If Congress, by veto-proof majority, reduced current tax rates by half, I guess the president has the discretion whether or not to enforce it, right?

    1. How about if a conservative, future president ordered that the IRS only prosecute those who pay less than half of their computed tax?
      Or a libertarian one that orders that the IRS prosecute no one for unpaid taxes.

  13. “In a world where authorities can prosecute only a small fraction of lawbreakers,” most laws are unenforceable under any objective measure and therefore should be repealed as violating equality under the law.

    I stopped reading when I got to the phrase I quoted, since I disregard the author’s premise that a system in which it exists is at all compliant with the 14th Amendment, and therefore any argument derived from this premise is fundamentally flawed.

  14. Although the author makes several arguments that sound plausible to himself and many here, these arguments mostly assume the president is using different reasons for refusing to enforce a law than the one he has stated himself.

    President Obama has stated that the reason he refuses to enforce the law is because the congress has failed to pass an immigration bill that he likes. No amount of argumentation can get passed this fact. He is not faithfully executing the office of the United States.

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  16. “The IRS’ selective targeting of conservative and Tea Party-aligned groups was illegal because they were targeted based on their exercise of First Amendment rights.”

    I notice that feck-all has been done about this, so what’s the point of offering this particular sop to those of us who prefer a limited, controlled government?

    1. Yes, this is what bugs me. We are supposed to respect the law, but the government is above the law.

      There is no rule of law unless the government must respect the law, too.

      None of these things by itself is that bad, but when put together, the citizen starts to see that there is now a class of nobility: that of government officials. And these nobles further hand out special rights and privileges to their favorite groups.

  17. The descriptions I’ve seen of this presidential program w.r.t. immigration make it look like a lot more than prosecutorial discretion. It looks as if some formal process is to be undertaken resulting in the conferral of privileged status on some or all applicants?a status which exists & continues only at POTUS’s pleasure. I don’t see how that’s consistent with the role of the executive branch, if it’s concocted by the executive branch itself. It’s like buying a ticket to the policeman’s ball gets you out of traffic tickets, only they’re saying it publicly instead of just implying it privately. Usually we’d call this corruption.

    1. And it’s not even a gain for individual liberty, because it’s not reducing the number of deportees, just making certain possible deportees politically beholden to Obama.

      1. Imagine if the GOP were in power and concocted some sort of algorithm to detect if you would vote GOP.

        They then ran this algorithm over all immigration cases, pushing the pro-GOP ones to the top of the pile.

        They would then say “prosecutorial discretion means we can do this…after all, we’re just prioritizing based on limited resources.

        1. And that is the problem with what Obama is doing – it doesn’t reflect the will of the people. Other uses of prosecutorial discretion did, or the issues were so minor it didn’t matter. This is setting a very dangerous precedent.

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  19. Why is it that no one has stated what, to me, is obvious about the constitutionality of this:

    “The President … shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”

    1. But reprieves & pardons are retrospective, not forward-going.

  20. It’s not so much the retreat from prosecution and deportation but access to opportunities and benefits that concerns me, e.g. advance(d) parole. It smacks of illegals once again “taking cuts” and getting in front of those who have worked within (an admittedly labyrinthine) system.

  21. You lost me at “undocumented immigrants”.
    They are illegal. Period.

    1. Claiming that people who have immigrated to this country unlawfully are simply “undocumented workers” belies their true status.

      First, not all people who have immigrated to this country unlawfully are actually workers. Then consider that some of those who are working have presented fraudulent documents to obtain those jobs–they’re documented, but have committed a separate crime when they used the fraudulent papers.

      Perhaps a more sensible euphemism is “unauthorized alien,” but that would tend to make a car thief an “unauthorized driver” and drug-dealers “unauthorized pharmacists”.

      It seems disingenuous to downplay the fact that most people who have immigrated to this country unlawfully knowingly violated at least a handful of laws when they stepped foot across the border, knowingly violate another handful of laws when they get a job, are often willing to commit fraud and/or conspire with employers to violate another set of laws, and often seek taxpayer-funded relief in the form of food stamps, health care, etc.

      I don’t think that should warrant any euphemism.

      1. By the way, US Code says [Title 18, Part I, Chapter 47, Section 1015] “Whoever knowingly makes any false statement or claim that he is, or at any time has been, a citizen or national of the United States, with the intent to obtain on behalf of himself, or any other person, any Federal or State benefit or service, or to engage unlawfully in employment in the United States…Shall be fined under this title or imprisoned not more than five years, or both.”

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  23. It took many words to say that the president has unlimited power (called prosecutorial discretion). The only thing this proves is that it is time for Congress to reign it in — not just on this president, but those who come after him.

  24. Legal?


    Perhaps not.…..itutional/

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  26. Well you Libertarians are open borders types so you should be happy with Obama. This the reason I don’t take the Libertarian movement seriously.

    1. Nor do many others.
      Maybe someday they’ll learn that anarchy will never sell with civilized people.

  27. So, as long as it’s for the Greater Good of Open Borders, Reason is fine with El Presidente enforcing the law, or not, based on his omnipotent whimsy.

    “Few other offenders have such a compelling moral justification for breaking the law.”

    They approve, therefore it’s ok.

  28. I disagree, IMHO Oblamo’s “prosecutorial discretion” has overstepped into abrogation of his Constitutionally required duty, it is my right to hold that opinion as well as the author’s is to hold his.
    But how does GIVING WORK PERMITS, and other promised documentation, things that aren’t a prosecutorial prerogative, fit into his actions?

  29. Anyone, no matter what race or original nationality, who comes to this country legally; who strives for citizenship; who embraces our language & culture while respecting their own traditions; who wants to help keep this country great–I welcome him with open arms and call him a fellow American. Those who sneak into this country illegally; who break immigration, employment, tax, zoning and even basic traffic laws on a daily basis; who reject our culture and retreat into barrios; who demand taxpayer-funded social services not even available to citizens in good standing–I have little sympathy for them and their “plight”.

    “In the first place, we should insist that if the immigrant who comes here in good faith becomes an American and assimilates himself to us, he shall be treated on an exact equality with everyone else, for it is an outrage to discriminate against any such man because of creed, or birthplace, or origin. But this is predicated upon the person’s becoming in every facet an American, and nothing but an American… There can be no divided allegiance here. Any man who says he is an American, but something else also, isn’t an American at all. We have room for but one flag, the American flag…… We have room for but one language here, and that is the English language…. and we have room for but one sole loyalty and that is a loyalty to the American people.” – Theodore Roosevelt, 1907

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  31. But it is really a simple solution. First, all benefits are taken.Second, any illegal caught in anything in this country is deported. Period. That means if caught in a hospital or stopped by a police officer or whatever.

    What do you think happens when you allow a race of people to invade? California is bankrupt and a lot of that is supporting the illegal alien?in our health care out there and the correctional and social system. And save your rebuttal Mr Progressive, I’ve lived there. What I say is exactly the truth. As a health care provider who saw it every day. That’s right Mr. Progressive, I did leave?I was tired of half of my patients not speaking English. How dare I think in my country they should speak English right?

    So that’s what happens when you cater to an invading people who break our laws. Abuse of all systems. Telling me I’m a racist for stating facts doesn’t negate that fact Mr. Progressive. It is not up to us to cater to Mexicans or their reasons for coming here.

    If we keep this up we will collapse. This won’t be the only factor but it will be one of them?and a large one. My fiction will become a reality as history shows it must become as so. Because following the law and securing your borders is largely common sense, an entity now lost in this nation.

    Charles Hurst. Author of THE SECOND FALL. An offbeat story of Armageddon. And creator of THE RUNNINGWOLF EZINE

  32. While the president certainly has the authority to defer prosecution under executive discretion, the president’s executive action goes much further. Obama is offering three-year work permits.

    Ilya Somin has argued elsewhere that permits are merely a by-product of the decision not to prosecute and they can be reversed by a future president. However, that argument fails to give any significance to the three-year timeframe attached to the work permits.

    To illustrate, suppose a worker receives a work permit that expires in January 2018. That would create an expectation rising to the level of a property right. If a future president were to revoke that permit before its expiration, the alien would have a due process right to a hearing, etc.

    By granting a substantive right, the president goes too far.

    Next, I don’t agree with the argument that Congress holds only the naturalization power – to the exclusion of any control over immigration. First, this ignores the fact that the PRESIDENT plainly has not immigration powers. But, further, it ignores the Necessary and Proper Clause. In 2014, controlling immigration is a necessary and proper act in furtherance of the naturalization power.

    Mr. Somin can’t cling to a hyper-restrictive interpretation of an enumerated power, all in order to argue in favor of the president’s use of a power that is not granted to the president at all.

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  34. (Part 1)
    This was a good article. I agree on many points: 1. That over criminalization is a huge problem in this country. 2. I’m pro-immigration and would like to see more people come here; and the immigration process is a mess and needs to be reformed. 3. Somin’s comments on originalist Constitutional interpretation applied to immigration are good points. It’s very likely Congress has already overreached with immigration restrictions.

  35. (Part 2)
    However, Somin appears to make some mistakes, mostly via omission. First, his explanation of the powers covered by prosecutorial discernment seem to omit important facts, namely, that P. Obama’s executive order was not merely a statement that the federal government is simply going to ignore illegal immigrants and refuse to prosecute them. Instead, among other provisions, Obama’s order expands DACA (Deferred Action for Childhood Arrivals) into DAPA (Deferred Action for Parental Accountability). DACA was very likely unconstitutional ( as it granted relief from deportation and allowed workers permits. DAPA does the same. The key to understand here is that Obama’s actions are making legal provisions for those who have broken the law (i.e., criminals) that trespass into Congressional legislative territory. It would be one thing if the President was saying he’ll simply look the other way on illegal immigration; but he’s saying he will reward illegal immigrants by promising not to deport them and grant them worker permits – privileges usually reserved for citizens. How do these positive provisions even come close to falling under prosecutorial discernment? (McCarthy does a good job here explaining this issue:

  36. (Part 3)
    To work off the marijuana example, it would be like the federal government promising that it not only won’t prosecute for possession of marijuana, but that it will reduce grade and graduation passing standards for regular smokers since they are at an academic disadvantage due to their frequent puffing. Nonsense.

    Second, how does Somin explain Obama’s own flip-flopping? We have Obama saying on record over 20 times, and a number of times on tape, that he didn’t have the executive authority to take such unilateral action on illegal immigration. And yet now he does. The President has not offered a good explanation of why he (a) was either ignorant about his powers of prosecutorial discernment to act unilaterally on behalf of immigrants for the past six years, or (b) why he waited so long to act if he did know he had these powers, especially when he promised on the campaign trail in 07 that immigration reform was so important to him. And when pressed on this, Obama defaults to his tried and true “Congress failed to act (re: Republicans), and so I must” BS. This means the President himself views his action not as lawful steps he could take as Executive, but doing that which Congress should do (and only legally can do) but hasn’t yet done (even though they still might). He clearly views himself as getting done what Congress hasn’t, which indicates he is trespassing on legislative perogatives meant only for Congress.

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  39. This has to be the strangest article I’ve read at Reason. The “faithfully executed” clause is so unabiguous as require overwelming evidence to prove it can be discarded. Drug sales on campuses is NOT that kind of evidence. Could it be that the DEA does not have original jurisdiction on State campuses?
    What it boils down to is, do you believe in Jefferson’s enumerated powers, or Hamilton’s implied powers. For libertarians, the choice is clear.

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