The Volokh Conspiracy

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Volokh Conspiracy

President Obama should not act unilaterally on immigration


Immigration reform is one of the few issues on which I generally agree with the Obama Administration. And from what I can tell, it's probably not illegal or unconstitutional for President Obama to defer action on millions of immigrants, and then grant the adults work permits. Nevertheless, he shouldn't do it.

Previous presidents have had the same discretion under the immigration laws that Obama has. But no president had ever used his immigration discretion simply to evade Congressional opposition to his policies, nor to extend de facto legal status to so many people. It corrodes public respect for the legal system when the president uses loopholes to evade the normal legislative process and enact an extremely controversial, wide-ranging policy that Congress has rejected. And if President Obama can do this with regard to immigration, what's to stop future presidents, including conservative Republican presidents, from using similar tactics? Bad behavior by one president inevitably becomes precedent for bad behavior by future presidents.

I'll quote Jonathan Chait here: "Our Constitution and legal structure alone don't secure the Republic. We also depend on norms—or an implied understanding of what sort of behavior is acceptable." Obama himself made a similar point a few years ago, just before he went ahead and engaged in his first major unilateral immigration reform anyway: "Believe me, the idea of doing things on my own is very tempting. I promise you. Not just on immigration reform. But that's not how our system works. That's not how our democracy functions. That's not how our Constitution is written."

What's needed, and what has been largely missing in this administration, is a president with the humility to recognize that his own immediate political interests and policy goals, his own pursuit and exercise of power, are and must be subordinate to the greater long-term public interest in the Constitution and the rule of law. Just because a president can do something, doesn't mean he should. And if doing something means establishing a precedent that it's okay for presidents to look through the U.S. code for loopholes that allow him to circumvent the normal legislative process and enact important policies not only without Congressional input, but in the face of affirmative Congressional opposition, when there is no exigency requiring immediate action, then he definitely should not.

UPDATE: Since the president is going to do this anyway, I hope he focuses his remarks tonight on the fact that there is likely a Congressional majority more or less favoring his immigration policies, but a minority is blocking their implementation. A minority blocking legislation does not, of course, give the president any additional powers. But here we are talking about whether the president should exercise discretion providing to him by statute, but never used in, and almost certainly not intended for, the type of scenario facing President Obama. So the question is, in what way can he do this that will do the least damage to our constitutional norms regarding the separation of powers? At least if he focuses on purported majority support in the Senate and House, he is cabining the very bold, and even extraordinary use of executive discretion for scenarios in which he is acting in concert with overall Congressional sentiment, if not Congressional action, and that may serve as a limiting principle on the precedent he's setting.