WASHINGTON -- Last Thursday evening, word spread on Capitol Hill that House Speaker John Boehner was considering suing President Barack Obama over his impending executive action to grant deportation relief for millions of undocumented immigrants. Hours later, conservative columnist Charles Krauthammer appeared on Fox News and floated the idea that an executive action would be “an impeachable offense.”
When Boehner and Krauthammer, arguably the top political and intellectual leaders of the GOP, suggest lawsuits and impeachment, it comes with more than a dollop of significance.
Across town, however, a far different type of conversation was taking place among an equally robust part of the conservative movement. At the Mayflower Hotel, lawyers gathered for the annual Federalist Society national convention -- one of the highest-profile conservative legal events of the year. The day’s big draws were the opening speech by Supreme Court Justice Antonin Scalia and an evening event featuring Justice Samuel Alito.
Before the crowd changed into black tie attire for Alito's appearance, however, a smaller panel convened under the title, “Federalism: The President’s Duty to Take Care That the Law be Faithfully Executed.” Panelists discussed major confrontations between the branches of government, from enforcement of marijuana law and the implementation of health care to Obama's impending executive order on immigration.
The talk was, well, lawyerly. Every conclusion seemed to have a qualification attached to it. But, by and large, the panelists agreed the president has wide legal latitude to prioritize and shape deportation laws, as regrettable for Republicans or the long-term balance of powers that may be.
“I think the roots of prosecutorial discretion are extremely deep,” said Christopher Schroeder, the Charles S. Murphy Professor of Law and Public Policy Studies at Duke Law School. “The practice is long and robust. The case law is robust. Let me put it this way: Suppose some president came to me and asked me in the office of legal counsel, ‘Is it okay for me to go ahead and defer the deportation proceedings of childhood arrival?’ Under the present state of the law, I think that would be an easy opinion to write. Yes.”
Schroeder was speaking specifically about the deferred action program that Obama already has put into place -- the one affecting so-called Dreamers who were brought to the U.S. as children. But later, Schroeder expanded his legal reasoning.
“I don’t know where in the Constitution there is a rule that if the president’s enactment affects too many people, he’s violating the Constitution,” Schroeder said. “There is a difference between executing the law and making the law. But in the world in which we operate, that distinction is a lot more problematic than you would think. If the Congress has enacted a statute that grants discretionary authority for the administrative agency or the president to fill in the gaps, to write the regulations that actually make the statute operative, those regulations to all intents and purposes make the law.
“I agree this can make us very uncomfortable. I just don’t see the argument for unconstitutionality at this juncture,” Schroeder added.
For those cheering on the Obama administration as the president gets set to unveil his executive action -- perhaps as early as this week -- this is the nut of it. There is a history, dating back to the '70s, of presidents using prosecutorial discretion when it comes to deportations. That those prior actions were smaller in scope doesn’t change the legal foundation upon which they and future ones rest. If conservative legal scholars agree, that’s not just affirmation, it’s gravy.
“I’m not disagreeing with you,” chimed in John Baker Jr. midway through Schroeder’s remark. Baker, a visiting professor at Georgetown University Law Center, had earlier accused the Obama administration of having, “as its purpose,” the goal of “destabilizing the republic.” But he also made the case that the way to stop a president this hell-bent on destruction was neither through lawsuits nor impeachment. It's through cleaner legislative language.
“If Congress wants to restrain the discretion of the president, they are supposed to do what the separation of powers encourages them to do: Write the statute tightly so that it will be actually administered the way you want it administered," Baker said. "The reality is many members of Congress don’t care how it is administered until somebody squawks about it. They don’t read the statutes, so how do they know how it is going to be administered.”
Later in the nearly 90-minute program, Neal Devins, director of the election law program at the College of William & Mary, offered a similar-sounding conclusion.
“I do not think the executive is subordinate to the judiciary, and if the executive is not subordinate to the judiciary and has the power to independently interpret the Constitution, it can’t be exercised only at the veto point when a prior president may have signed the bill,” Devins said. “The president who inherits the bill has to have the opportunity to interpret it himself and not be bound by the prior administration. The idea that the prior administration can tie the hands of a subsequent administration doesn’t make sense to me.”
But what if a president is reversing his own earlier judgement, he was asked. Obama, after all, has declared on numerous occasions that he can’t simply re-interpret immigration laws as he sees fit. He did so when defending himself to immigration reform advocates who demanded that he defer deportations. Now, he seems poised to do that very re-interpreting.
“The president cannot bind future administrations," Devins conceded. "It’s a little trickier to say the president cannot bind himself.”
Then Devins plowed forward once more. “But the president has the power to independently interpret. He can come across uncovered evidence. Just like the courts can reverse themselves, the presidents should be able to reverse themselves, right? Why would we give the Supreme Court the power to reverse itself and not give the president that power?”
Much of this discussion, it should be noted, was at an abstract level -- not necessarily tailored to the specific executive action Obama is considering.
The panelists were offering their own viewpoints, not speaking on behalf of the Federalist Society. And not all of them are down-the-line conservatives. Professor Schroeder, for example, advised the Obama administration's Department of Justice.
After Devins offered his question, no one pushed back. That they didn’t wasn’t necessarily surprising for many immigration reform critics, considering the recent history of conservative jurisprudence.
.@samsteinhp Generation of conservative legal scholars learned to defend/believe in expansive executive power. This is a problem.
— Mickey Kaus (@kausmickey) November 14, 2014
These critics argue that while the president may be following prior presidents' use of prosecutorial discretion, Obama is contemplating an order so vast that those precedents essentially don't apply.
Others, including some conservative lawyers, haven’t so much criticized the legal foundation for executive action as to warn that it may open the door for policies either more egregious or with different ideological objectives. The Washington Post’s editorial page made such a point on Tuesday. John C. Yoo, a University of California, Berkeley, law professor who was quite the fan of expansive executive authority when he worked in the George W. Bush Justice Department, posed the underlying question in an article for the Texas Law Review.
“Can a President who wants tax cuts that a recalcitrant Congress will not enact decline to enforce the income tax laws?” asked Yoo, along with University of St. Thomas law professor Robert Delahunty. “Can a President effectively repeal the environmental laws by refusing to sue polluters, or workplace and labor laws by refusing to fine violators?”
The panelists at the Federalist Society didn’t address Yoo’s specific piece. But several noted that the lawyers of the Bush years hastened the creation of the powerful executive that the audience was now lamenting during the Obama years; though that didn't, they added, make the laments any less serious. Baker, the most vocal Obama critic on the panel, argued that while the breadth of executive actions was not, per se, illegal, it was “undermining the whole foundation of our Constitution.”
Where he differed, perhaps, was in assigning blame. The onus was not on the president to check his own power, but on Congress to act with institutional self-interest. Asked whether Republicans could pass a continuing resolution declaring Obama’s executive order on deportations to be a usurpation of legislative power, Baker nearly scoffed audibly.
“Sometimes Congress will pass resolutions when they don’t want to do anything, but they want to tell voters they’ve done something,” Baker said. “So i don’t think much of resolutions. It is about power, and the power is in the money, and [Rep. Paul] Ryan and others have said, 'We are going to stop you from implementing this through the power of the purse.' That’s about the only thing they have at this point.”
This story has been updated to reflect that the Federalist Society does not take formal positions, and that not all of its members are conservative on all issues.