John Eastman is the founding director of the Claremont Institute’s Center for Constitutional Jurisprudence and a constitutional law professor at Chapman University’s Fowler School of Law.
“I’m president, I’m not king,” Barack Obama famously said back on October 25, 2010, responding to requests from groups supporting rights for illegal immigrants to unilaterally implement immigration reform. (He would later attribute the “problem” to the fact that he’s “the president of the United States, not the emperor of the United States.”) “There’s a limit to the discretion that I can show because I’m obliged to execute the law,” he added. “I can’t just make the laws up myself.”
Six months later, he explicitly tied his point to his inability to stop deportations. “With respect to the notion that I can just suspend deportations through executive order, that’s just not the case,” he said on March 28, 2011. “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.”
That was well before the 2012 elections, of course. During the summer leading into that election (and perhaps in an appeal to Hispanic voters), he unilaterally implemented the Deferred Action for Childhood Arrivals (“DACA”) program, effectively imposing on the country the DREAM Act that Congress had refused to pass and suspending deportation for roughly one million illegal immigrants. Then, after the drubbing his party took in the 2014 midterm elections, President Obama expanded that program even further and also unilaterally implemented the Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) program, suspending the deportation of an additional five million or so illegal immigrants.
But the president’s executive actions did more than just suspend deportation. While denying that his actions have provided a “legal status” to millions of immigrants who are in this country illegally, he and his henchmen over at the Department of Justice and the Department of Homeland Security have claimed in a wonderful bit of legerdemain that these “deferred action” immigrants have a “legal presence,” and are therefore eligible for work authorization and a host of other federal and state benefits that flow to immigrants who are lawfully present in the United States. All this, according to the president and his too clever lawyers, pursuant to the “prosecutorial discretion” the president has.
There are at least three serious constitutional problems with the president’s claims (quite apart from the failure to comply with the Administrative Procedure Act’s notice-and-comment requirements before these dramatic changes in policy were put into place). First, there is a serious question whether prosecutorial discretion even applies in the context of immigration deportation proceedings. Prosecutorial discretion is an idea that arises in the criminal prosecution context, but deportation proceedings are civil in nature, not criminal. Moreover, as the U.S. District Court for the Northern District of Texas ruled in its 2013 decision in the case of Crane v. Napolitano – the only federal court to have confronted the issue directly – the word “shall” in the relevant statutes mandated the initiation of removal for all unauthorized aliens, thus statutorily removing whatever prosecutorial discretion might otherwise exist. That court subsequently ruled that exclusive jurisdiction for that particular case rested with the Merit Systems Protection Board, but its statutory analysis was spot on.
Second, even assuming that prosecutorial discretion applies here at all, the courts have made quite clear that there is a line between permissible prosecutorial discretion in an individual case and impermissible wholesale suspension of the law. The latter would violate the president’s constitutional duty to “take care that the laws be faithfully executed,” and by adding the “take care” issue to the questions presented in the United States v. Texas case, the Supreme Court has already indicated its interest in confronting that matter. As it noted all the way back in 1838 in Kendall v. United States ex rel. Stokes: “To contend that the obligation imposed on the President to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the constitution, and entirely inadmissible.”
This is not some ancient and long-forgotten doctrine, but it is a key component of the modern separation-of-powers doctrine as well. As recently as 1985, the Supreme Court in Heckler v. Chaney recognized that judicial review of exercises of enforcement discretion could potentially be obtained in cases in which an agency has adopted a general policy that is an “abdication of its statutory responsibilities.” The Justice Department itself recognizes this significant constraint on the exercise of prosecutorial discretion, admitting in its memo rationalizing the president’s conduct (in what otherwise has to be one of the most contorted legal opinions ever to issue forth from that department) that “the Executive Branch ordinarily cannot . . . consciously and expressly adopt a general policy that is so extreme as to amount to an abdication of its statutory responsibilities.” “[A] general policy of non-enforcement that forecloses the exercise of case-by-case discretion poses ‘special risks’ that the agency has exceeded the bounds of its enforcement discretion,” the memo adds.
Secretary Janet Napolitano’s 2012 memo launching the DACA program and Secretary Jeh Johnson’s 2014 memo launching the DAPA program both regurgitate the phrase, “on a case by case basis,” indicating they (and their attorneys) were fully aware of this constitutional limit, but the mere repetition of the magic phrase is pretext, masking the substance of the memo, which is effectively a wholesale suspension of the law for an entire category of individuals. During a hearing before the U.S. Senate at which I testified back in December 2014, that point became manifestly clear. Everyone treats the DHS memos as establishing a “right” to receive deferred action and lawful presence in the United States for anyone meeting the specified criteria. That is not the “case by case” exercise of discretion that the courts have recognized; indeed, fewer than one percent of all applicants for the DACA/DAPA programs have been denied, and to my knowledge every single denial was based on the failure to meet the established criteria. In other words, the president and his administration have effectively changed the terms of the law, categorically suspending its operation for an entire class of illegal immigrants meeting the president’s criteria, rather than the law’s criteria. That is why the “take care” issue was added to the case.
Where precisely to draw the line between permissible case-by-case discretion and impermissible suspension of the law is a difficult matter, however, so let us assume for the sake of argument that the Court punts on that question, deciding that it is a non-justiciable political question. That still leaves a third – and what I consider to be the most significant – constitutional problem with the president’s actions. For truth be told, he has not simply declined to prosecute (or, more precisely, declined to initiate deportation proceedings) as the law requires; he has deemed these individuals as lawfully present in the United States, which raises two additional problems. First, deciding not to prosecute someone is not the same thing as giving that individual a legal entitlement to continue engaging in the illegal conduct. A highway patrol officer can decide not to pull over a driver who is exceeding the speed limit by only five miles per hour, but that is not a license for further speeding. Second, by virtue of the so-called “legal presence” treatment, the president has in addition made available all sorts of benefits for which there is no legal authority. As the general counsel for the Immigration and Naturalization Service during the Clinton administration correctly noted back in July 2000, “The doctrine of prosecutorial discretion applies to enforcement decisions, not benefit decisions. For example, a decision to charge, or not to charge, an alien with a ground of deportability is clearly a prosecutorial enforcement decision. By contrast, the grant of an immigration benefit, such as naturalization or adjustment of status, is a benefit decision that is not a subject for prosecutorial discretion.”
The president’s administration has now argued that five words in a definitional section of the massive set of immigration statutes actually gives the attorney general (or, by virtue of a post-9/11 substitution, the secretary of Homeland Security) unfettered discretion to issue work authorization to any and all illegal immigrants (and all of the other benefits that flow from such an authorization). What utter nonsense. The statute at 8 U.S.C. § 1324a(a)(1) actually prohibits the employment of “unauthorized aliens.” Subsection (h)(3) in turn defines “unauthorized alien” as any alien who is not “lawfully admitted for permanent residence” (there are several carefully wrought statutory provisions by which illegal immigrants can obtain lawful permanent residence status) or an alien “authorized to be so employed by this chapter or by the Attorney General.” Anyone familiar with the byzantine immigration laws knows (or should know) that the last clause simply references other provisions in the law that specify certain grounds on which the attorney general can provide a lawful status – such as assistance in ongoing human-trafficking investigations. The clause was certainly not intended to allow the attorney general to set aside decades of congressionally enacted immigration policy on his own unilateral authority.
Nor could Congress have given such authority to the attorney general if it had wanted to. Article I, Section I of the Constitution could not be more clear. “All legislative powers herein granted shall be vested in a Congress of the United States,” it provides. That means the basic policy judgments that are the essence of the legislative power have to be made by Congress, not by the executive branch, whose role is to enforce the laws made by Congress rather than to make new law. Congress can delegate to the executive the authority to fill in gaps in the law, and to apply changing factual circumstances to the policy judgements set out in the law, as long as it provides the executive with an “intelligible principle” directing their enforcement conduct. But it cannot delegate the lawmaking power itself.
Although this “non-delegation doctrine” has been a bit moribund over the past eighty years, the president’s claim here amounts to an unconstitutional delegation of lawmaking power even in its moribund state. For the words “or by the Attorney General,” if they are actually interpreted in the manner that the president’s lawyers now claim, contain no constraining principle whatsoever, much less an intelligible one. Indeed, with this new interpretation, one wonders why illegal-immigrant advocates have been working so hard for decades to get the DREAM Act through Congress, if the authority was there all along. As Judge Jerry Smith rightly noted in his opinion for the Fifth Circuit in this case, the president’s position is untenable, for Congress does not hide elephants in mouseholes. Quite the contrary: “When an agency claims to discover in a long-extant statute an unheralded power to regulate a significant portion of the economy, [the courts] typically greet its announcement with a measure of skepticism.”
By adding the question, “whether the [DHS memo] violates the Take Care Clause of the Constitution, Article II, section 3,” to the questions presented by the case, the Supreme Court has indicated that it believes there is real substance to Texas’s constitutional arguments on this score. If the Court actually follows through and revives the non-delegation doctrine as a result of this president’s overreach, we will owe the president thanks for being the catalyst that restored some measure of the important separation-of-powers principles that are so fundamental both to our constitutional system of government and to the liberty it was designed to protect – a fitting resolution of the case for he who would be king.