Reason.com

Free Minds & Free Markets

Yes, Obama’s Executive Action Deferring Deportation for Millions of Immigrants Is Constitutional

The immigration laws whose enforcement the president is restricting are themselves unconstitutional.

[On Thursday, constitutional scholars Ilya Shapiro and Ilya Somin will debate the constitutionality of President Obama's executive order immigration in an event at Reason's Washington, DC office moderated by Reason Foundation Senior Analyst Shikha Dalmia. Both scholars are previewing their arguments at Reason.com today. Read Shapiro's case against the constitutionality of Obama's order here.]

The Obama administration’s policy of deferring deportation for over four million undocumented immigrants is the focus of United States v. Texas, a major case currently before the Supreme Court, in which numerous state governments challenge the president’s order. While Obama’s action highlights the alarming extent of executive discretion in the modern state, it is not unconstitutional.

Whitehouse.govWhitehouse.gov

The most fundamental reason why Obama’s policy is legal is one that has not been raised in the litigation over it: The immigration laws whose enforcement it restricts are themselves unconstitutional. The detailed list of congressional powers in Article I of the Constitution does not include any general power to restrict migration.

The Naturalization Clause gives Congress the power to establish a "uniform Rule of Naturalization." But it does not grant any authority over migration, as opposed to eligibility for citizenship. The power to regulate "commerce with foreign Nations" is another possible source of congressional power. But during the Founding era 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. The Commerce Clause also gives Congress the power to regulate interstate as well as international commerce. Yet almost no one at the time of the Founding believed 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, Congress’ war powers enable it to ban entry by enemy spies, terrorists, and soldiers. But there is no general congressional authority to ban the entry of people simply because they are foreign nationals.

Not until the Chinese Exclusion Act of 1882 did Congress adopt a significant law banning migration as such, as opposed to narrowly defined categories of migrants who might fall within the scope of other enumerated powers. It forbade nearly all immigration from China, and was largely motivated by racist hostility to the Chinese. In 1889, the Supreme Court upheld that law on the basis of crude, nonoriginalist reasoning holding that the power to restrict migration was "inherent" and did not need to be enumerated—even though the framers did enumerate such far more fundamental powers as the authority to declare war and raise armies.

Adherents of "living constitution" theories of interpretation can endorse this result. But originalists—including most of the critics of Obama’s action—cannot.

This is especially true for those conservative originalists who have argued for a narrow interpretation of Congress’ powers under interstate Commerce Clause. If the term "commerce" has a narrow definition when it comes to interstate commerce, the same applies to foreign commerce. The Constitution literally uses the same word to cover both, giving Congress the power to "regulate Commerce with foreign Nations, and among the several States."

Obama’s policy is constitutional even aside from the dubious nature of the immigration restrictions it affects. Most of his order is simply an exercise of longstanding executive discretion in deciding when to enforce federal laws. There are more than 11 million illegal immigrants in the United States, and no administration is likely to deport more than a fraction of them.  A majority of Americans have violated federal criminal law at some point in their lives. Only a small fraction are ever prosecuted. The executive has  unavoidably broad discretion to decide which suspected lawbreakers to pursue and which to ignore.

This is far from the only case where federal law enforcement agencies have chosen to systematically ignore a large category of lawbreakers. Federal prosecutors virtually never target marijuana possession by students on college campuses, even though it is widespread and ubiquitous. The number of people—including the last three presidents of the United States—who have gotten away with violating federal law in this way greatly exceeds the number exempted from deportation by Obama’s policy.

Lower court rulings against the Obama policy hold that it goes beyond ordinary executive discretion because it replaces "case by case" discretion with categorical rules imposed by the president. But the difference between case by case examination and categorical rules is one of degree, not kind. Unless case by case discretion is completely arbitrary, it must be guided by some sort of generalizable criteria, such as the severity of the offense. And if general rules like this can be applied by low-level law enforcement offenders handling particular cases, they can also be applied systematically by the president, their ultimate superior.

This consideration should be especially salient to conservative originalist advocates of the "unitary executive" theory, which holds that the Constitution requires all executive branch officials to be under the control of the president. Given the vast scope of modern federal law enforcement, often the only effective way for the president to exercise effective control is to issue general rules that bind his subordinates. At yesterday’s Supreme Court oral argument, Texas Solicitor General Scott Keller actually admitted that the administration can systematically defer deportation, even for millions of people, so long as "that’s all they are doing."

Critics also claim that Obama has violated the Take Care Clause of the Constitution, which requires the president to "take care that the laws are faithfully executed." But that Clause surely does not require the president to enforce every federal law to the hilt, especially in a world where it would be literally impossible to even come close to doing so. Otherwise, virtually every president would be in constant violation of the Clause.

Historical evidence suggests that the Clause was meant to prevent "suspension" of the laws—a presidential determination that an otherwise illegal action is lawful. Obama’s order does no such thing. It does not legalize any otherwise illegal immigration any more than failure to prosecute marijuana possession on college campuses makes it legal to get high in a dorm room. It merely states that the administration will not deport certain categories of (admittedly illegal) aliens until such time as the president may decide otherwise.

The plaintiffs are on stronger ground in emphasizing that the new policy goes beyond deferring deportation because it allows many of the covered aliens to be legally employed in the US, which is otherwise forbidden by federal law. But this part of the policy is explicitly authorized by the 1986 Immigration Reform and Control Act, which specifically permits employment of aliens who are "authorized…to be employed…by the attorney general."

Much attention has recently focused on the grant of "lawful presence" to the immigrants covered by the order. While this may seem like a big deal, in reality "lawful presence" does not actually legalize the presence of any otherwise illegal migrants, and does not prevent any from being deported at any time the president might choose. For the most part, it merely reiterates the executive’s discretionary decision not to deport the migrants covered by the order. It does, however, also allow them to accrue time for the receipt of Social Security and Medicare benefits that, however, they are unlikely to ever actually collect unless their status is genuinely legalized at some point in the future, and they remain in the US until after retirement age. Moreover, the "lawful presence" element of the President’s order can easily be struck down separately, without affecting the other, far more important aspects of the policy.

Obama’s exercise of discretion in this area highlights the enormous power enjoyed by the modern executive in a world where nearly everyone is guilty of violating some federal law. Like undocumented migrants who manage to avoid deportation, many of us are also free only as long as officials choose to overlook our violations of labyrinthine federal laws. This reality creates numerous opportunities to abuse executive power by means of selective enforcement.

The way to address that danger, however, is not to attack Obama’s effort to protect immigrants, but to work to reduce the enormous scope of federal law that created such vast discretion in the first place.

Ilya Somin is professor of law at George Mason University. He is the author of Democracy and Political Ignorance: Why Smaller Government is Smarter, and The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain. Parts of this column are adapted from earlier blog posts at the ACS Blog, and the Open Borders website. 

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Night Elf Mohawk||

    The immigration laws whose enforcement it restricts are themselves unconstitutional. The detailed list of congressional powers in Article I of the Constitution does not include any general power to restrict migration.

    A1, §8, Clause 10:
    "To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;"

    At the time of ratification, "Law of Nations" included immigration law.

  • JFree||

    No it didn't. All laws related to the mobility of people and naturalization (citizenship did not really exist then) related directly to the feudal legal/obligations system which was very much in place and which differed dramatically. But any notion by these authors that the founders had no legal knowledge of reality - and hence could make some grandiose notion about mobility - is ideological bunkum. The founders knew exactly what the legal environment was then. It was taught in law schools.

    And they spent the next 100 years or so engaging in the detailed bilateral agreements that were necessary for immigration to even START. eg - http://avalon.law.yale.edu/19t.....ax1845.asp - which abolished droit d'aubaine, droit de retraite, and droite de detraction between Saxony and the US. Which allowed emigration from Saxony to the US - same was done with every single country.

    If authors actually believe their BS, then those consular agreements are themselves unconstitutional - and the US isn't an immigrant destination because there are no emigrants

  • BambiB||

    And even if it didn't - even if we accept the premise, that the Federales don't have authority - then the States and the People do. The only thing keeping States from prohibiting criminal aliens is the argument that the Feds control immigration. If they don't - the States do - and Texas can put a bounty on them tomorrow.

  • some guy||

    The executive has unavoidably broad discretion to decide which suspected lawbreakers to pursue and which to ignore.

    No. This could be avoided if Congress limited itself to only outlawing actions that actually directly harm other people, rather than creating a myriad of "victimless" crimes.

  • Hugh Akston||

    rather than creating a myriad of "victimless" crimes

    You mean like illegal immigration?

  • Night Elf Mohawk||

    Do you consider trespassing victimless? Why or why not?

  • tarran||

    If I hire a guy from Tijuana to reap my crops, how is he trespassing?

  • R C Dean||

    On his way to your farm, perhaps?

  • Hamster of Doom||

    Yeah, Tarran, you didn't build that road.

  • tarran||

    On a public road? I thought those were open to.... the public?

  • Night Elf Mohawk||

    And yet you likely can't get into the library at 3AM. "Open to the public" is not synonymous with "unfettered, unrestricted access," is it? I mean, hell, you need a license legally to drive on them, public or not, don't you?

  • tarran||

    I need a license to purchase a bus ticket? A license to ride a bike? A license to walk?

  • Los Doyers||

    I mean, hell, if they ain't no red-blooded American, they need a license just to take a shit.

  • Night Elf Mohawk||

    I didn't say any of that. I gave a specific example of why "open to the public" doesn't automatically mean that "the public" can do whatever it wants, whenever it wants, so the appeal to roads doesn't invalidate the idea that it's quite possible to trespass on public property.

  • Agammamon||

    Are you saying that its appropriate to close the roads to the public when there isn't enough money to staff them 24//7?

  • Agammamon||

    Because even an illegal immigrant can enter a public library - just as I can - when its open.

  • Night Elf Mohawk||

    Are you saying that its appropriate to close the roads to the public when there isn't enough money to staff them 24//7?

    I'm saying that even public spaces can have restrictions.

  • Agammamon||

    But can it have conditions based on *who you are*?

  • Night Elf Mohawk||

    But can it have conditions based on *who you are*?

    Try hanging out in English 101on a public college campus. What do you think will happen if the prof or the college doesn't want you there?

  • Hamster of Doom||

    That something, somewhere, is conditional, does not mean it therefore follows that everything, everywhere, is conditional. Otherwise you get caught up in logical fallacies and the next thing you know you're implying that closing the library means the highway also has business hours.

    Don't let that stop you, though. I'm enjoying watching peeps make a "you didn't build that" argument in all seriousness.

  • Night Elf Mohawk||

    That something, somewhere, is conditional, does not mean it therefore follows that everything, everywhere, is conditional.

    I didn't say it was. I said it could be.

    That something is public does not mean it therefore has no access restrictions. It's not logically inconsistent to say that something is public yet still subject to restrictions.

  • Suicidy||

    You're arguing with 'open borders at any cost' people. Don't expect a logical argument. Just lots of incoherent strawmen.

  • Agammamon||

    Shouldn't need a license at all. Its not like it actually certifies your ability to drive. Don't pretend you haven't seen the way people drive.

  • Night Elf Mohawk||

    Shouldn't need a license at all. Its not like it actually certifies your ability to drive. Don't pretend you haven't seen the way people drive.

    "Shouldn't" doesn't mean "doesn't."

  • ant1sthenes||

    "public" means "of/for the people", meaning a specific community (thus, its contribution to "res publica").

    An illegal immigrant is not part of the people in question. So, no, there's no reason we should assume that they have an equal right to traverse "public" roads.

  • Night Elf Mohawk||

    Did you teleport him? And never allow him off your property?

  • Jerryskids||

    He was obviously trespassing by crossing the border into my country.

    Oh, wait, it's not my country, it's tarran's country, too. If tarran invited him, what right do I have to stop him?

  • Night Elf Mohawk||

    tarran has the right to invite someone onto his property. He doesn't have the right to invite that someone onto property that isn't his own.

  • Agammamon||

    He hasn't.

    At no time did this guy ever go onto property that any other member of the public didn't have the privilege' of going on.

  • Night Elf Mohawk||

    At no time did this guy ever go onto property that any other member of the public didn't have the privilege' of going on.

    Kind of begging the question, aren't you?

    If you assume the privilege of those in violation of immigration laws to do certain things then, yeah, their doing those things isn't problematic.

  • Hamster of Doom||

    That has got to be the most unintentionally ironic thing said today.

    I'm calling a winner. No one even try topping that. Can't be done.

  • Night Elf Mohawk||

    Except I've cited the Constitutional provision that does give Congress the power to regulate immigration. So there's that.

  • Hamster of Doom||

    I could cite the provision which made alcohol unconstitutional.

    You seem like you're trying to think this out. It's a pity that I'm getting the impression you're putting more thought into arguing itself, than what's being argued.

    Bookmark this and mull it sometime. We'll get another opportunity.

  • Night Elf Mohawk||

    I've thought it out.

    Practically, Congress has the power to regulate immigration. Given that, it's not unreasonable to analogize illegal immigration to trespassing, in that it isn't a fully consensual transaction.

    It sounds like you want to talk about how how things should be under your ideal system of law. I'm talking about how things are under the system of law we have.

    Ideally, neither immigration laws nor Prohibition would be a thing. Under the Constitution we have, they are. Regardless of our preferences.

  • PapayaSF||

    The guy from Tijuana has his kids on welfare, and gets his health care in the emergency room, without paying for it. (Or, if Hillary has her way, subsidized through Obamacare.) It's not a "victimless crime" because taxpayers are the victims.

  • Agammamon||

    That guy from Tennessee has his kids on welfare, and gets his health care in the emergency room, without paying for it. Its not a 'victimless crime' because taxpayers are the victims.

    Again - the problem is *welfare*, not immigration. Fix the ROOT problem, don't treat the symptoms.

  • Los Doyers||

    But that guy from Tennessee was born here. Like, north of the Holy Border. So, he gets to do all those things, duh.

  • ||

    Tennessee welfare trash gave us Miley Cyrus. What has Mexico ever done for us?

  • Night Elf Mohawk||

    Tequila.

  • SugarFree||

    Warty? What? You're alive? I thought you died from all that Ebola the dirty immigrants were bringing in.

  • Los Doyers||

    Ebola is actually Warty's final form.

  • ||

    I thought it was measles. Or is it Zika now?

  • Swiss Servator||

    A deadly fusion of Zika and Ebola?

    Eika? Zibola?

  • Lord at War||

    So, once a person has been raped, that hole is fair game for everyone?

  • Homple||

    I guess Tennessee doesn't supply enough welfare cases, so let's import more of them .before we fix the welfare system.

  • Suicidy||

    The guy form Tennessee has allegiance to the United States, not a foreign power.

  • ThomasD||

    Open borders or a welfare state. Pick one.

    Although, don't bother. Since we already have a welfare state you don't get to make that choice.

  • BambiB||

    It's not just trespassing. It's criminal invasion. The Third Reich sweeping into Poland and France is something the open borders nimrods cheer. After all, didn't the Seventh Panzer Division have the same "right" to cross the French border as the wetbacks do to cross the US border?

  • some guy||

    Yes, like that, Hugh. Also, Jesus, I'm sorry I said anything.

  • DJF||

    [quote] Article One, Section 9 The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, [/quote]

    So after 1808 Congress does have the right to stop the migration or importations of Persons.

    Some will immediately scream, that just for slaves but it does not mention slaves, just Persons. And it also mentions migration, slaves don’t migrate.

  • R C Dean||

    Thanks, DJF.

    There's a principle of statutory construction that says every part of a statute should be deemed to have some purpose. You don't mention "migration" unless you mean "migration", and the phrase "migration or importation" must mean that migration is something different than importation. The natural reading is migration of (free) people or importation of slaves.

    Saying "shall not be prohibited before 1808" really has no purpose unless it also means "may be prohibited after 1808". Why else put the year in there?

    Would anyone seriously argue that a federal ban on importing slaves after 1808 would have been unconstitutional? I doubt it. So how do you argue that a federal ban on immigration after 1808 would have been unconstitutional?

  • Agammamon||

    According to the Mann Act, the government has the right to restrict travel across state borders.

  • JFree||

    This is actually the reason the Constitution doesn't enumerate the power in Congress. There was no such thing as an 'American citizen' until the 14th Amendment. States had that power. Ellis Island was not created from legal scratch. New York state had processed immigrants through Fort Clinton (or Castle Garden) - and was one of the few states that was interested in allowing anyone from outside the country to enter. But they were required to state where they were going - and NY wasn't much interested in documenting that if there destination was outside NY. So in 1890, Secy of Treasury stopped contracting with NY state re immigration - NY disallowed use of Castle Garden - so the Feds processed immigrants through the Barge Office (near the old US Customs House) until Ellis Island was built.

    re immigration - feds just assumed a power given to the states under the constitution. And it is completely reasonable/necessary post-14th amendment for that to happen

  • colorblindkid||

    Battle of the Ilyas.

  • DJF||

    """Article 4, section 4 The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; """"

    Congress is mandated to protect the states from invasion. It does not say armed invasion, just invasion and millions of people entering a country without permssion is an invasion.

  • tarran||

    So, if Delta airlines sells a plane ticket from Tijuana to Albany to a resident of Tijuana, that means he doesn't have permission to fly to Albany?

    If the man rents an apartment in Albany, he is in the apartment without permission?

    If GE hires him to work in their mailroom, he doesn't have permission to be on their premises?

  • DJF||

    But we are dealing with the Constitution of a Country so it is the Country which must give permission

    You can't deny the country by quoting the Constitution of that country. You cannot proclaim borders to be meaningless by using the Constitution of that country.

    If Delta flies their plane without permission it will be stopped

    If an Albany apartment owners rents without permission it will be stopped.

    If GE hires someone for their mailroom who is not allowed in the country he will be stopped

    The US Constitution is not libertarian. You may want it to be but its not.

  • tarran||

    No. I'm saying that describing a guy buying a plane ticket from a willing seller, renting an apartment from a willing landlord, getting hired by a willing landlord as 'invading' a country stretches the meaning of the word so far beyond its definition as to render it meaningless.

  • DJF||

    So if I was to sell a plane ticket to an ISIS member, rent out an apartment to the same person, and getting them a job at a power plant owned by GE then its OK?

  • tarran||

    I would think you a scumbag if you knowingly did business with an ISIS member, but none of those things are crimes.

    Shall we go after Pizza Hut for selling pizza to the 9/11 hijackers the night before they killed 3000 people?

  • Los Doyers||

    We should go after Pizza Hut in general. It's trash.

    /ducks

  • tarran||

    If we don't stand up for the right of people to produce a greasy acidic carbohydrate laden laxative, who will?

  • Swiss Servator||

    Laxative? Really?

    More like the opposite.

    "One 14 inch thin crust, pepperoni and cheese bowel obstructer, plz"

  • R C Dean||

    none of those things are crimes.

    Not so sure. Could be conspiracy or aiding and abetting.

  • Los Doyers||

    Yeah, the founding fathers were definitely concerned about a Mexican invasion of cheap labor 200 years from when they wrote that. They also knew that guns would change and stuff, so that's why there should be sensible gun laws.

  • ||

    Stop typing and get back to mowing my lawn, you fucking bean.

  • Los Doyers||

    Vete a la verga, guero!
    (I'll get right back to it, sir!)
    /dons sombrero, drinks mezcal from the bottle

  • Agammamon||

    "Go wing cock, Guero!"

    *sigh* - look, mang, you guys can't be running around like cops and cameras. Technology has moved on. There's Google translate now.

  • Los Doyers||

    But there's still no Google Mexican, yet...

  • Agammamon||

  • AlexInCT||

    Pito? Camote? Cusanito?

  • ||

    Is this the straw you people are grasping at now? EVERBODY PANIC IT'S AN INVASION

  • DJF||

    Its a better straw then the author of this article who denies that the Constitution does put limits on both migration and invasions

  • ||

    The Constitution doesn't put limits on anything but Congress and the Executive. If you're going to hyper-parse things, you should hyper-parse things.

  • DJF||

    It also gives powers to Congress and the Executive. Taxes, wars, Navy's and Army's, migration, defending against invasions, etc

  • ThomasD||

    You cannot reason someone out of a position they did not reason into in the first place.

    Not can you draw their attention to something they have chosen to ignore.

  • Playa Manhattan.||

    A sexy, sexy invasion.

    How bout some weather girl links?

  • ||

    You can GIS Yanet Garcia as well as me, gabacho.

  • Agammamon||

    To Texas can close its borders to people fleeing the high tax regime of California? If not, why is that different.

    What is so special about a national border that doesn't apply also to state borders which, if you remember, are nominally independent political entities.

    What about an Indian reservation closing its borders?

  • DJF||

    No, if you read the constitution it opens the borders between the states.

  • Agammamon||

    Except for trade. And criminal law. Both areas where congress has already limited your ability to freely cross inter-state borders.

  • Agammamon||

    Separately - and this is in all seriousness. Can you point me to the section of the Constitution that does this? I can't think of where it would be off-hand and don't feel like reading the whole thing right now. If you *know* that is - I'm not asking you to enact my labor for me, but if you could provide a cite I could review I would appreciate it.

  • Cap'n Krunch||

    Actually the interstate commerce act is meant to prevent states from preventing commerce across their territories. So South Carolina cannot excessively tax or ban transportation of Georgia cotton to North Carolina in order to make South Carolina cotton more appealing in NC, and Alabama cannot ban transportation of dildos which would be illegal in Alabama from Louisiana to Florida where they're legal.

  • Jerryskids||

    The most fundamental reason why Obama’s policy is legal is one that has not been raised in the litigation over it:

    IANAL, but from my understanding of how appellate courts work, issues that have not been raised are supposed to have exactly nothing to do with what the court decides. The court is supposed to look strictly at the arguments put before it. (Yes, I know the justices are biased human beings and will rationalize making any decision they're pre-disposed to make and they're lawyers who've been specially trained to rationalize with arguments and cites to relevant case law as to why 2+2 does indeed equal 5 if that's what they've already decided the outcome should be, but don't they at least have to pretend that they're not just pulling something out of their ass? How are they going to work into their opinion an issue that wasn't raised in the appeal?)

  • Idle Hands||

    An endorsement of rule of man:

    Critics also claim that Obama has violated the Take Care Clause of the Constitution, which requires the president to "take care that the laws are faithfully executed." But that Clause surely does not require the president to enforce every federal law to the hilt, especially in a world where it would be literally impossible to even come close to doing so. Otherwise, virtually every president would be in constant violation of the Clause.

    Historical evidence suggests that the Clause was meant to prevent "suspension" of the laws—a presidential determination that an otherwise illegal action is lawful. Obama’s order does no such thing. It does not legalize any otherwise illegal immigration any more than failure to prosecute marijuana possession on college campuses makes it legal to get high in a dorm room. It merely states that the administration will not deport certain categories of (admittedly illegal) aliens until such time as the president may decide otherwise.

    Wut.

  • R C Dean||

    As we discussed yesterday, if all he was doing was saying we won't prosecute certain cases, that might be defensible. However, he is doing more than that; they aren't just not prosecuting, they are actually legalizing certain otherwise illegal immigrants. If the clause was meant to prohibit suspension, it would prohibit not prosecuting by policy at some point. Obama has gone beyond even that.

    This reminds me of the gay marriage kerfuffle. In lunging after one of their Shiny Toys, some libertarians are signing up for a profoundly unlibertarian project.

  • John||

    He is handing out cards and granting legal status. That is completely different than saying "I am not going to deport you".

  • retiredfire||

    "he shall take Care that the Laws be faithfully executed"
    "Faithfully" means he must do so "in a manner that is true to the facts or the original".
    Anyone with Half a brain knows what he has done has NOTHING TO DO WITH PROSECUTORIAL DISCRETION and is all about granting a form of amnesty.
    Has Congress suddenly cut the funding that was applied to the deportation of this group?
    Has some other exigency arisen that requires those funds be diverted elsewhere?
    There is no reason for there to be a change, yet he has made one.
    So, the claim that the resources can't produce the results the law requires, is not supported by any facts except the dozens of times that 0blama has stated he wants to grant amnesty, but didn't have the power, and now has come up with an excuse - that's not being "faithful".

  • ThomasD||

    "Faithful" is an entirely political question, since it can only be decided by impeachment.

    Given that the current political climate renders Obama all but immune from that process he is de facto being "faithful" to his duty.

    But as RC Dean notes, 'libertarians' who are rejoicing in this outcome might want to consider what limits a President Trump might similarly transgress.

  • Jerryskids||

    Oh, I'm pretty sure most of us do know how to make a good income on the internet. Most of us aren't so unscrupulous and unprincipled as to set up a scam "make big money working at home" web site and then go around spamming the hell out of website comment boards just to make that good income, however. If you really want to make good money on the internet without ripping people off, all you need is a good internet connection, a web cam and the willingness to do something most people would find utterly digusting or horrifying but that some few will pay good money to watch you do. Is there a website where for 5 bucks you can watch a guy pee on an electric fence and then lick it off? Try that. You might have to jack up the amperage to make it interesting, but no pain, no gain as they say.

  • Mickey Rat||

    Nonsense on stilts.

    Aside from what others have cited in the constitution, as well as the federal government's authority over naturalization, that would suggest that even the minimal immigration control that libertarians say they support, like screening for diseaseor checking passports is absolutely prohibited.

    Somehow this breach of the constitution has gone unnoticed and unremarked upon for well over a century.

  • R C Dean||

    Somehow this breach of the constitution has gone unnoticed and unremarked upon for well over a century.

    All the best ones do, you know.

  • retiredfire||

    Yes.
    The author claims that the power granted to regulate naturalization doesn't extend to being able to regulate how we treat those who might be eligible for such treatment, such as if they can reside here with an expectation of it happening and being able to access all the privileges that go with it, but somehow extend the "war powers" to being able "to ban entry by enemy spies, terrorists, and soldiers".
    I consider such conclusions as pulling-it-out-of-his-ass, reasoning.
    Maybe the esteemed professor needs to look up the word "consistency".

  • Agammamon||

    Yes, Obama’s Executive Action Deferring Deportation for Millions of Immigrants Is Constitutional

    *Part* of that executive action is constitutional - the part that deprioritizes certain classes of immigration crime (and again - I don't think this stuff should be illegal in the first place). The *other* part, the part where these people are given temporary residency permits and 'made legal' that way - that's not constitutional and a massive overreach of executive power.

    I'd like to think Reason could show some nuance and . . . consistency. Just because he's overstepping his authority to make things better (and I think this could make them better), he doesn't have the authority to do what he's done. Principles, not principals.

    Wait until he or the next guy use this usurpation of congressional authority to justify something you don't like - *yet again*.
  • Drake||

    Reason really is all-in on rule by Executive Fiat when it suits there purposes.

  • grrizzly||

    Reason libertarians (open borders type) are not any different than the rest of the public. When they don't like something, for example, Obamacare executive orders, then Obama's actions are horrible and constitutional. But when they like something, then who cares what the Constitution says and how the decisions are implemented, we got what we wanted, and it's all that matters.

  • grrizzly||

    horrible and unconstitutional

  • Agammamon||

    Not all of us are like that.

    I can fully accept that the US government may have the power to limit immigration while believing that it shouldn't be. And I can accept that the full extent of what Obama's done on this subject exceeds his authority and that no matter what short-term good it may bring, long-term its a bad idea and should not have been attempted.

  • Night Elf Mohawk||

    This pretty much covers it and illustrates why a lot of the questions here end up in such a tangle. There are philosophical answers based on how things "should" be and there are practical answers based on the system of law we have (even if some of those answers are also based on "should" because the system is warped).

    Congress has the power under the Constitution to regulate immigration. Whether that's ideal is a separate question.

    Ideally, people could come and go as they please. Of course, ideally they wouldn't go around violating the NAP, either, but that's unlikely.

    It's at least colorable that not prosecuting immigrants of a certain status is acceptable discretion. Granting status on top of that, not so much.

  • John||

    If the President can unilaterally decide to change and selectively enforce this law, he can do it with any law. And that is going to do a lot more harm than this minor gain in the open borders cause will do good. It is terribly disappointing to see people not understand that.

  • Night Elf Mohawk||

    You get rid of laws by repealing them, not refusing to enforce them. The latter is arbitrary and gives no notice what is actually a punishable offense under the law.

    Whose ox is gored is a terrible way of determining whether you like an exercise of power.

  • John||

    Even by its own terms, this action is grossly unfair. The law says an immigration judge or someone at CIS gives you legal status based on a given set of criteria. These people are getting status based on an arbitrary set of criteria. I guess it is great if you can get it, but how is that fair to anyone else? There is no sense of due process or fairness about this system. It is just Obama giving indulgences to whomever he deems worthy.

    And he is not accountable to anyone. Obama could decide to deport you and give me legal status based on whatever criteria he wanted. Oh, you said something mean about Obama on your Facebook page? Well no status for you. And since this is an exercise of discretion, you will play hell getting any legal review of that decision. And even if you could, since you are in the country illegally, you will be deported before you ever get the chance to bring it.

  • Agammamon||

    Its an inevitable consequence of the separation of powers.

    Prosecutors and police have the same discretion.

    Its related to the fact that its *easy* for the legislature to give the executive an order - but the executive needs the resources available to fulfill all those orders.

    If the legislature can not or will not provide those resources then things have to be prioritized. This is just the executive's priorities. Congress could always go back and order those priorities to be changed - but until they do (or if they don't), the executive can't run around pretending that its going to be able to fulfill all its duties.

    Executive orders are a form of open government - where the executive openly posts his priorities and if you don't agree, you can always take it up with congress or put a different guy in the WH.

  • John||

    No they don't Agammamon. The police couldn't one day decide that they were no longer going to prosecute entire classes of crime. They could but it wouldn't be legal. Suppose the police decided that they were no longer going to investigate thefts if they were from a person or business who was worth over a so much money. Or that they were only going to prosecute defendants who had previous convictions and let the others just walk.

    Prosecutorial discretion is when the prosecutor or cop based on the facts of this case decide not to proceed. It is not deciding to not proceed with entire classes of cases.

  • NashTiger||

    Ends justifying the Means is sort of quasi-Libertarian-ish. (Progressitarian?)
    Which is why I am a Constitutionalist before I am a Conservatarian.
    I don't think I'd like a Libertarian Dictator much more than a Prog one.

  • Think It Through||

    Two Ilyas discussing immigration? What are the odds?

  • BunkerBill||

    So it's okay for the President to rule like an Emperor as long as he does it in support of "Open Borders" or anything else that "Libertarians" like. Got it.

  • tinamorris1145||

    uptil I looked at the bank draft saying $8885 , I didn't believe that my mother in law woz like they say truly taking home money in there spare time at their laptop. . there great aunt haz done this less than 17 months and as of now repayed the mortgage on there home and bourt a great Renault 4 . see

    Copy This Link inYour Browser

    http://www.MaxPost30.com

  • tinamorris1145||

    uptil I looked at the bank draft saying $8885 , I didn't believe that my mother in law woz like they say truly taking home money in there spare time at their laptop. . there great aunt haz done this less than 17 months and as of now repayed the mortgage on there home and bourt a great Renault 4 . see

    Copy This Link inYour Browser

    http://www.MaxPost30.com

  • John||

    Historical evidence suggests that the Clause was meant to prevent "suspension" of the laws—a presidential determination that an otherwise illegal action is lawful. Obama’s order does no such thing.

    That is a complete lie. Obama's actions take an act, coming into the country illegally, and makes it lawful. To believe otherwise is to think that "suspension of laws" only applies when the President ignores a law in all cases. Doing that would give the President the power to ignore laws in whatever cases he saw fit as long as he bothered to enforce the law once in a while.

    By this logic the President could for example grant waivers from civil rights laws or environmental laws to companies he favored and be totally within the law as Somin sees it as long as he rigorously enforced the law against those he didn't like. And that is consistent with the rule of law or a result in any way intended by the drafters of the document?

    This is the most appalling piece Reason has ever published. It confirms that reason has no principles or commitment to anything beyond a set of policies they like.

  • KDN||

    It confirms that reason has no principles or commitment to anything beyond a set of policies they like.

    This isn't a Reason editorial; it's a Dalmia piece. And you shouldn't be surprised by this argument if you've paid any attention to her many shitty articles on the subject over the past decade. I am confident that her guiding principles are as follows:

    1) Hindu men keep India the hellscape it is and consequently deserve deserve every bad thing that happens to them
    2) Immigration is always a net positive in every way and should be maximized as a matter of course.

  • KDN||

    Derp. It's Somin. IGNORE ME!

  • John||

    And it is listed as "Reason Staff". To me that is an endorsement of the views expressed there by the entire magazine. That is different than just publishing something under a writer's name.

  • KDN||

    They've been posting articles on that byline on H&R for a lot of contributors. I think it's the default for non-Editors.

  • John||

    Yes. and they just published a piece going the other way under the same byline. So I stand corrected.

  • Mainer2||

    Not only do those Hindu men deserve it, they deserve deserve it. (sorry, you teed it up, I had to hit it)

  • Seamus||

    Not until the Chinese Exclusion Act of 1882 did Congress adopt a significant law banning migration as such, as opposed to narrowly defined categories of migrants who might fall within the scope of other enumerated powers.

    I think you overlooked the ban on the "Migration or Importation" of slaves, effective 1/1/1808.

  • John||

    Congress had the power to regulate the importation of slaves under the Constitution. So I think that falls under teh scope of "other enumerated powers.

  • R C Dean||

    I think the better reading of that grant of authority is to allow Congress to regulate the migration of anyone or the importation of slaves.

    There's also a case to be made that immigration is under the control of each state. That, of course, is a completely dead letter.

  • janiceboliver||

    I've made $64,000 so far this year working online and I'm a full time student. Im using an online business opportunity I heard about and I've made such great money. It's really user friendly and I'm just so happy that I found out about it. Heres what I do,

    --------------------- http://www.richi8.com

  • Cap'n Krunch||

    A nation without a border isn't a nation, it's a patch of land between real nations. The very concept of nation involves citizenship. The rights enumerated in the Constitution are the rights of citizens of these United States, they are not the rights of citizens of Mexico or Iran. If the concepts put forth in this article were allowed then Mexicans and Canadians could just waltz in every 4 years and help us elect our president.

  • Laird||

    This is a remarkably poor article. First, the underlying constitutionality of the immigration laws is wholly irrelevant to the case before the Supreme Court. Second, whether or not "a majority of Americans have violated federal law at some point in their lives" is a complete red herring. So is whether or not other laws aren't being enforced; two wrongs don't make a right, and those other laws aren't before the Court.

    The only real justification for Obama's order is prosecutorial discretion. That is a legitimate argument; the government's resources are limited, and it must have some basis for prioritizing deportations. And if that's all Obama's order did it would be pretty much unobjectionable. But it didn't. In this order Obama didn't merely say "we're going to put this group of people at the bottom of the enforcement list", he also decreed that such persons would be eligible for various federal benefits, and even ordered that the states take certain actions (issuing them driver's licenses, for example). This is wholly beyond his power, and far exceeds the legitimate limits of "prosecutorial discretion."

    If the Court upholds this overbroad and clearly unconstitutional order, it will be on blatantly political grounds, not constitutional ones. And it will set a precedent for future presidents which its advocates will come to regret.

  • Ron||

    isn't the Drivers license issue up to the individual states and not the Federal government?

  • ranrod||

    This piece is full of horse feathers!!

    first off THERE ARE UP TO 60 INVADERS occupying the USA...

    The congress and courts ate COMPLICIT.............

  • Ron||

    I read half the flawed argument in the article and then read the far more intelligent comments and my prediction is this person will lose the case based on this argument. BTW would a judge allow some one to argue a case in this manner by arguing that a separate law is the problem and not the one being judged. wouldn't you have to sue the other law in order to argue its merits?. I'm clearly no lawyer but thats how I think it should work.

  • Alan@.4||

    Possibly I'm missing something but I hadn't noticed that "constitutionality", or the lack thereof was ever of much concern to President or Emperor Obama.

  • retiredfire||

    The Youngstown decision was critical because it established a standard for the exercise of executive power. In his concurring opinion, Justice Robert H. Jackson described three different situations and three corresponding levels of presidential authority:

    The president acts with the most authority when he has the "express or implied" consent of Congress.

    The president has uncertain authority in situations where Congress has not imposed its authority -- either by inaction or indifference -- and the president takes advantage of this "zone of twilight" to make an executive decision.

    The president acts with the least authority when he issues an executive order that is "incompatible" with the expressed or implied will of Congress. Such an act, wrote Justice Jackson, threatens the "equilibrium established by our Constitutional system".

    Despite what 0blama claims, he was not authorized to act based on Congress's inaction. Congress expressed their will through the failure to pass the "Dream Act" that proposed, essentially what 0blama did, by executive fiat. The inaction he refers to was an absence of action in the direction he wanted - not the same thing.

  • baileymary355||

    I can see what your saying... Carrie `s st0rry is great, on monday I bought themselves a BMW 5-series from bringing in $7179 this - four weeks past and-a little over, ten k lass month . with-out a doubt this is the easiest work Ive ever done . I actually started six months/ago and pretty much immediately began to bring home at least $72, p/h . browse this site....

    +++++++++++ http://www.MaxPost30.com

  • Cloudbuster||

    The most fundamental reason why Obama’s policy is legal is one that has not been raised in the litigation over it: The immigration laws whose enforcement it restricts are themselves unconstitutional.

    Even were I to accept the shaky premise, then the conclusion would be that I, too, am free to disregard any law I think is unconstitutional, just like Barack Obama.

  • pbinCA||

    The most honest way to talk about temporary migration...vacationers, businesspeople, students... is to say that the Constitution failed to anticipate a phenomenon that only later would grow to exceed the numbers of people intending to move permanently. Though few people engaging in argumentation about what the original Constitution means in 2016 can afford complete objectivity, the truth is that there are many aspects of modern life that just plain are not thought about at the time 1788-89. And the fact that phenonena not thought about comes our way as an omission does not imply any intentionality to deny government powers over them somewhere in the future.

    However, one could reasonably interpret powers to "devise a uniform rule of Naturalization" to implcitly cover regulation of temporary visits, based on the logic of loophole prevention.

    The word "uniform" is a legal term-of-art meaning "applies to everyone the same", or "not subject to arbitrary judgments" or "free of loopholes to be exploited by some". If the rules for permanent immigration could be circumvented by merely claiming that "I'm only visiting", then that would consitute a loophole the size of a Mack truck (Conestoga wagon?).

    The "uniform rule", if it authorizes Congress powers to regulate pernament immigration free of compromising loopholes, by implication gives the power to also regulate temporary visitation.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online