The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Several of my co-conspirators have commented on the Supreme Court's grant of certiorari in the immigration case United States v. Texas. In particular, they have remarked on the court's striking decision to add a question for review: "Whether the Guidance violates the Take Care Clause of the Constitution, Art. II, §3." I have been arguing for years that President Obama is flouting his constitutional duty to take care that the immigration laws are faithfully executed; in fact, I testified to that effect before the House Judiciary Committee in December 2013. (Back then, the program at issue was DACA, which purported to exempt more than a million people from the immigration laws; the program at issue in this case is DAPA, which purports to exempt millions more.) Here is the relevant section of that testimony (footnotes omitted):
The relevant clause of the Constitution, which should be the lodestar of this discussion, is the Take Care Clause: "The President … shall take Care that the Laws be faithfully executed." To put these recent controversies in constitutional context, it is essential to understand the meaning and purpose of this Clause. As always, it is best to begin by parsing the constitutional text.
First, notice that this Clause does not grant power but rather imposes a duty: "The President … shall take Care…" This is not optional; it is mandatory. Second, note that the duty is personal. Execution of the laws may be delegated, but the duty to "take Care that the Laws be faithfully executed" is the President's alone. Third, notice that the President is not required to take care that the laws be "completely" executed; that would be impossible given finite resources. The President does have power to make enforcement choices-however, he must make them "faithfully." Finally, it is important to remember the historical context of the clause: English kings had claimed the power to suspend laws unilaterally, but the Framers expressly rejected that practice. Here, the executive would be obliged to "take Care that the Laws be faithfully executed."
With these principles in mind, it is possible to view recent controversies through the proper constitutional lens. For this purpose, I shall focus on three recent examples- though, sadly, there are many others that one could choose. I shall focus on [among other things] the President's unilateral abridgement of the Immigration and Nationality Act.
Congress has repeatedly considered a statute called the DREAM Act, which would exempt a broad category of aliens from the Immigration and Nationality Act (INA). The President favored this Act, but Congress repeatedly declined to pass it. So, on June 15, 2012, the President announced that he would simply not enforce the INA against the precise category of aliens described in the DREAM Act. He announced, in effect, that he would behave as though the DREAM Act had been enacted into law, though it had not.
Once again, the President does have broad prosecutorial discretion and broad discretion to husband executive resources. But in this case, it is quite clear that the President is not merely trying to conserve resources. After all, his Solicitor General recently went to the Supreme Court to forbid Arizona from helping to enforce the INA. And exempting as many as 1.76 million people from the immigration laws goes far beyond any traditional conception of prosecutorial discretion. More to the point, this exemption has a distinctly legislative character. It is not a decision, in a particular case, that enforcement is not worth the resources; rather it is a blanket policy which exactly mirrors a statute that Congress declined to pass. To put the point another way, the President shall "take Care that the Laws"-capital "L"-"be faithfully executed"-not those bills which fail to become law. Here, in effect, the President is faithfully executing the DREAM Act, which is not law at all, rather than the Immigration and Nationality Act, which is supreme law of the land. The President cannot enact the DREAM Act unilaterally, and he cannot evade Article I, section 7, by pretending that it passed when it did not.
Indeed, the President himself made this exact point, eloquently, only 20 months ago:
America is a nation of laws, which means I, as the President, am obligated to enforce the law…. With respect to the notion that I can just suspend deportations through executive order, that's just not the case, because there are laws on the books that Congress has passed… There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply through executive order ignore those congressional mandates would not conform with my appropriate role as President.
And just last week, in response to a heckler, the President expressly denied that he has "a power to stop deportation for all undocumented immigrants in this country." He reiterated:
[W]e're also a nation of laws. That's part of our tradition. And so the easy way out is to try to yell and pretend like I can do something by violating our laws. And what I'm proposing is the harder path, which is to use our democratic processes to achieve the same goal that you want to achieve.
What the President did not explain is how his current immigration policy is consistent with that principle.
It is very good news that the Supreme Court has taken up this question. I don't think that the president will necessarily lose 9-0 at the Court, as he did the last time he violated Article II of the Constitution, but I do think that the administration will lose once again, and the Supreme Court will once again be forced to hold that President Obama has overstepped his bounds.
The complete version of my testimony may be found here.