The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Opponents of President Obama's recently announced plan to defer the deportation of up to 5 million undocumented immigrants argue that it undermines the rule of law. After all, they contend, the president is required to enforce federal law as written, not pick and choose which violators to go after and which to exempt. But, in reality, all modern presidents inevitably make policy choices about which violations of federal law to prosecute. Obama's decision to defer deportation is in line with those of past presidents, and well within the scope of his authority.
To the extent that the rule of law is in jeopardy here, it is because the scope 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. Moreover, at least under the original meaning of the Constitution, the legality of the immigration laws that Obama has chosen not to enforce in some cases is itself suspect.
I. Executive Discretion in Enforcement of Deportation Laws 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 systematically ignored than punished. 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 of the hook, including the last three presidents of the United States – far more than are 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 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 the harm caused by the violation in question and whether federal resources might be better employed elsewhere. 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.
Moreover, past presidents such as Ronald Reagan and George H.W. Bush have systematically exempted large numbers of illegal immigrants from deportation, 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.
II. Dangers of Excessive Discretion and the Overexpansion of Federal Law
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. 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 or other illegal drugs. If exemption from prosecution is acceptable for the latter, it should be permitted for the former too.
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 danger existed long before Obama's announcement today, and the president has not made it any worse than it was before. Long before today, presidential administrations unavoidably had to make broad discretionary decisions about which of the many violations of federal law out there are worth prosecuting and which ones are not. And long before today, those decisions were influenced by policy and moral considerations.
Some safeguards are provided by constitutional bans on certain types of discrimination. For example, the president cannot choose which offenders to prosecute based on their race, gender or religion. But the only way to really fix the problem of excessive discretion is to reduce the scope of federal law such that the federal government can 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. That way, presidents will hesitate to forego enforcement of them, because doing so will result in paying a high political price. So long as we have a large number of federal laws that neither the public nor the political elite really wants to enforce to the hilt, there will be extensive opportunities for abuse.
III. The Originalist Case for Obama's Policy
Finally, it is worth noting that the 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 (though it did have power over naturalization). That may not matter 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.
I am no fan of 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 today's decision isn't one of them.
UPDATE: Co-blogger Jonathan Adler discussed the wide latitude for executive discretion under immigration law in this post.
UPDATE #2: I would add that the part of the president's new policy offering work permits to some of those whose deportation is deferred in no way changes the analysis above. The work permits are merely a formalization of the the president's exercise of prosecutorial discretion here, which indicates that the administration will not attempt to deport these people merely for being present in the United States and attempting to find jobs here. They do not purport to legalize their status, and the policy of nondeportation can be reversed at any time by the president or his successor.
In addition, the federal statute that forbids employment of "unauthorized aliens" includes an exemption for those "authorized to be so employed by this chapter or by the Attorney General," and the AG is presumably going to issue such authorizations for those covered by the president's executive order.
UPDATE #3: Some argue that the 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 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. Moreover, as the memo points out, the Supreme Court in Arizona v. United States has explicitly interpreted existing immigration law as giving the the executive branch the authority to defer deportation for humanitarian reasons:
A principal feature of the removal system is the broad discretion exercised by immigration officials… Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all….
Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service.
UPDATE #4: Timothy Sandefur responds to this post here, arguing that Obama's actions are inconsistent with the word "faithfully" in the Take Care Clause. As he puts it, "taking actions the President himself has repeatedly admitted are illegal-not as a result of budgetary problems, but simply because he disagrees with current law, is not faithful execution of the law." But Sandefur also admits that "A president faced with limited resources who chooses to prosecute only the severest crimes the budget will allow, is faithfully taking care that the laws be executed." The judgment of which crimes are the "severest" necessarily rests in large part on policy and moral considerations. Thus, in a world where, due to budgetary constraints and the enormous scope of federal law, the president can only prosecute a small fraction of all violators, he can legitimately choose to prosecute those offenses he considers most severe based on policy and moral judgments. That is true in the case of drug laws, and it is equally true in the case of immigration law. Indeed, it is more true in the case of the latter, given the broad discretion Congress has delegated him.
Sandefur also worries that my analysis gives the president so much discretion "that no president would ever be in violation" of the Take Care Clause. Not so. A president who uses executive power to harrass 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 or political animus towards the accused. He would also be in violation 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.
UPDATE #5: Sandefur responds further in an update to his original post:
Seems to me Prof. Somin gives up when he says that the President would violate the Take Care Clause if he "chose targets for prosecution not based on the severity or importance of the crimes they committed but based on personal or political animus towards the accused." I see no difference in principle between that and choosing not to enforce the law out of political animus toward the law itself. Both are bad faith refusals to see that the laws be executed, and this violate the Constitution. he only alternative to that view, it seems to me, is to read the word "faithfully" out of the Clause and this allow the President unlimited authority to choose which laws to enforce and which to disregard, based on his own preferences.
There is an obvious difference between choosing enforcement priorities based on policy judgments about the law in question, and doing so based on purely personal animus against the offender. The former is based on a judgment of the public benefits of law enforcement priority, whereas the latter is not a law enforcement objective at all, but a matter of personal antagonism between the executive and the defendant. If making such a distinction means giving up on using the Take Care Clause to limit presidential discretion, than Sandefur himself has given up, given his willingness to allow the president to pick and choose targets based on his judgment of the severity of violations. Judgments of severity are inevitably linked to policy and moral considerations similar to those that likely motivated Obama's executive order on immigration.
Prosecution based on political animus against an individual is even more easily distinguished from discretion based on policy considerations relating to the nature of the law at issue. Targeting potential defendants based on their political views threatens First Amendment individual rights. Unlike individuals, laws don't have any First Amendment rights.
Finally, Sandefur's rejoinder ignores the various other limits on presidential discretion mentioned in my earlier post. I note some additional ones here.