11/20/2014 12:22 pm ET Updated Dec 06, 2017

Stop Pouting and Get to Work! The President's Immigration Order Is Constitutional


This is the day for presidential headline and legal assessment of his claimed discretion not to deport on a case by case basis.

Whether the envisioned scope of the President's discretion extends to suspending (until the end of his term at least) the deportation of millions does not really even push the envelope of what it means for the President to "take Care that the Laws are faithfully executed." Resolving the matter on favor of the President is not partisan assertion, but constitutional deduction. This is particularly true if the President is anchoring his proposed executive order on the Constitutional declaration that "all persons born in the United States and subject to the jurisdiction thereof are citizens..." Mr. Boehner can huff and puff all he wants about impeachment and he will have the same effect as the proverbial attempt to blow down a brick dwelling. If original understanding means anything at all, the day a President can be impeached for following the text of the Constitution is the same day Justice Scalia will willingly returning his weapons with a note that he was in error about those gun rights in his Second Amendment after all.


Not going to happen. Of course as the President extends the suspension beyond parents of minor citizens born here, he then needs to rely upon implied claims of power which is somewhat more doubtful again for reasons that would distress Scalia more than Obama. To put the matter, bluntly when power depends on judicial concurrence more than explicit legal text, a disregard of principles of judicial restraint make the outcome any one's judicial guess. That said, unless we are hypothesizing wholly ideological judges, there is ample Supreme Court precedent proclaiming as recently as 2012 in Arizona v. U.S., that that executive discretion over when and how to prosecute immigration cases is an inherent constitutional power, lending the strongest support to the propriety of President Obama's executive order. A "principal feature of the removal system,'' the court said in that case, "is the broad discretion exercised by immigration officials ... [who], as an initial matter, must decide whether it makes sense to pursue removal at all."

The President is the chief immigration officer, and Congress cannot constitutionally vest that authority in itself or likely immunize a decision of a presidential subordinate from the supervisory view of the President. What sense would that make? It would neither improve accountability nor end the lawful presence of aliens pursuant to the exercise of executive discretion, whether the executive is named Obama or someone else. The Supreme Court elaborated that "discretion in enforcement of immigration law embraces immediate human concerns ... 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. Some discretionary decisions involve policy choices that bear on this nation's international relations."

Prosecutorial discretion authorizes the president as the chief executor of the law to define his immigration enforcement priorities. Granting temporary reprieve from removal of up to potentially over 5 million unauthorized immigrants who are the parents of U.S. citizen children or prior "Dream Act" recipients or certain highly needed workers permits a more effective allocation of limited enforcement resources.

The current presidential action only seems bold when it is taken out of context or compared to those presidents, like President Taft, who had an unduly narrow conception of the presidential office. Taft's view was that everything not expressly given the President and that does not adjudicate cases and controversies were congressional, rather than executive. Some modern presidents have acted in this excessively timid fashion, but that is hardly constitutional practice. Indeed, President Reagan thought the point so important that he had me intervene, as his then head of the Office of Legal Counsel, in special prosecutor Walsh's Iran-Contra litigation because Walsh edged close to or even into the overly narrow view of presidential power that seemingly would have denied President Reagan or his subordinates, as he directed them, to solicit donated funds for a presidential purpose for which a statute denied funding from the general treasury. Reminiscent of Teddy Roosevelt, Reagan had me stake out the president's deliberations over matters of foreign affairs as residually executive. Arguably, and ironically, Boehner's conception of presidential power would be more likely to impeach the Gipper than Obama.

President Obama in asserting these constitutional and related inherent authorities as the sole organ in foreign affairs has been careful to observe the limits of his implied authority in domestic matters, like health care. Congress has by statute more or less precluded the extension of health care to aliens even as, subject to some difficult case precedent, the Congress is precluded from denying an education to an alien child. There is no equivalent equal protection limit on health care. Given the President's attachment to widening health care coverage to make it as universal as possible, is it credible that President Obama would not include that assertion of authority if it was at all arguable? More prosaically why would a savvy political figure like Barack Obama at this post mid-term point be thinking of ways the Democrats can secure the Hispanic base of voters? His prudence in refraining from including in his executive order matters that were included in the Senate's earlier comprehensive reform, such as driver's licenses and temporary guest worker privileges, certainly disappoints the President, as it disappoints the owners of farms who need a reliable pool of labor as well as those who work the farms and need legal status to be treated fairly.

Obama has affirmed these statutory limits many times. No amount of telling the President that he said or meant something different. Even if a transcript of his remarks would reveal some slip of legal lip mistakenly averting less power than he had, to insist that the President forfeits his constitutional authority if he once misstated it is to engage in a nonsense exercise. Obama himself has said many times in relation to certain statutes, including in particular those that preclude a reform as comprehensive as that previously passed by the senate, the president cannot do the equivalent unilaterally. The limits of statute are the rule of law binding on all.

By contrast, the President's actions in exercising discretion to acknowledge the constitutional citizenship of those born here is, as some aid said, "unassailable." To assail those core aspects of presidential power would deny the separation of powers, not enforce it. This again is especially true, since in the assertion of the discretion granted to him by the Constitution, President Obama has been careful to identify and to defer to congressionally-placed conditions on his authority do long as it carries forward his judgment. Thus, the reprieve from removal which the Constitution grants the President is not automatic, but is subject to case-by-case adjudication under guidelines issued by the Department of Homeland Security as the executive is authorized to do under federal immigration law.

Furthermore, the law authorizes the department to issue work authorization for noncitizens once deferred action has been conferred, provided they demonstrate "economic necessity." Finally, the President has not been at all bashful about using his discretion to remove aliens during his term of office. Presumably those who argue for fences in the desert have approved President Obama's aggressive removals to date. If that approval is to be viewed as rational, it must be conceded to exist in a case where the removal considerations are absent.

Unassailable? Good enough for government work. Stop pouting over actions the Constitution allows. Worry more about what the Constitution or your constituents will conclude if, like the last Congress, you do nothing at all.