How, originalism and unitary executive theory strengthen the constitutional case for Obama's immigration policy

|The Volokh Conspiracy |

In a guest post at the American Constitution Society Blog, I explain how the constitutionality of President Obama's controversial immigration policy can be defended based on theories generally associated with the rival Federalist Society (of which I am a longtime member):

The Obama administration's immigration policy deferring deportation for more than four million illegal immigrants has been the focus of extensive constitutional debate since it was announced last fall….

Ironically, the case for it is particularly strong if we accept two principles that many of the policy's conservative critics strongly support in other contexts: the unitary executive and limiting the scope of congressional power as close as possible to its original meaning. At the same time, the Obama policy highlights the dangers posed by executive discretion in a world where there is far more federal law than any administration can effectively enforce.

I discussed some of the constitutional issues raised by Obama's policy in greater detail in this December article. MY ACS Blog post also builds on this 2013 post, in which I explained why Congress does not have a general power to forbid immigration under the original meaning of Article I of the Constitution (though, obviously, such a power has been granted by nonoriginalist Supreme Court decisions, and may be justifiable under some versions of "living" Constitution theory).

While I don't agree with ACS on all that many issues, I believe they make a valuable contribution to legal debates, and I am grateful for the opportunity to do a guest post on their site. I also have had good experiences speaking on ACS-sponsored conferences and panels on various issues (including ones where I advocated very different positions from those held by most ACS members).