The Volokh Conspiracy

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My Reason article on why Obama's immigration policy is constitutional [Updated with a brief response to Timothy Sandefur]


Reason has just published my article on why President Obama's recent order deferring deportation of several million illegal immigrants is constitutional. Here's a brief excerpt summarizing the contents:

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…

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.

UPDATE: This article was written and published before today's federal district court decision declaring Obama's order unconstitutional. I hope to comment on the decision (which I think is poorly reasoned and fails to consider obvious opposing arguments) later.

UPDATE #2: I critique the poorly reasoned district court opinion in this post.

UPDATE #3: Timothy Sandefur criticizes my article here. Most of the points he makes are ones that I have previously addressed here and here.

I would add that Sandefur is wrong to analogize Obama's actions to a "suspension" of law, which probably would indeed violate the Take Care Clause of the constitution. A suspension of law implies that those who violate it during the period of the suspension have not done anything illegal, and cannot be prosecuted in the future. By contrast, prosecutorial discretion is merely a decision not to prosecute that in no way implies that the beneficiaries of it have acted legally. And such a decision—like Obama's order—can be reversed by the executive at any time in the future, at which point the law could still be enforced against violators who had previously been spared by executive action. Obama has indeed attempted to suspend the law in the case of the Obamacare waivers; but he hasn't done so in his immigration order. The administration claims that the beneficiaries of the waivers are immunized from any future liability for violating the law during the period when the waiver applies. By contrast, the beneficiaries of the executive order deferring deportation can still be deported in the future if Obama or his successor choose to rescind the order.