A new paper by John Yoo (UC Berkeley School of Law) and Robert J. Delahunty (University of St. Thomas School of Law, Minnesota) raises many questions about President Obama's decision to grant legal status to nearly two million illegal aliens under deferred action and concludes that the president's act "threatens to vest the executive branch with broad domestic policy authority that the Constitution does not grant it." If taken to its logical conclusion, President Obama's lawless action has the power to undermine the entirety of immigration law, while expanding the presidential power in all domestic policy areas.
The professors explain:
For if a president can refuse to enforce a federal law against a class of 800,000 to 1.76 million, what discernible limits are there to prosecutorial discretion? Can a president decline to enforce federal laws barring that class from voting in federal elections? Can a president decline to enforce the deportation statute against all illegal immigrants because of a belief in an "open borders" policy? Can a president who wants tax cuts that a recalcitrant Congress will not enact decline to enforce the income tax laws? Can a president effectively repeal the environmental laws by refusing to sue polluters, or workplace and labor laws by refusing to fine violators?
The professors examine the executive branch's law enforcement powers and responsibilities, arguing that "the Constitution's Take Care Clause imposes on the president a duty to enforce all constitutionally valid acts of Congress in all situations and cases … [and] that there is simply no general presidential non-enforcement power… [and that] the deliberate decision to leave a substantial area of statutory law unenforced or under-enforced is a serious breach of presidential duty." The professors argue that the White House "has provided no adequate excuse or justification for its non-enforcement decision."
While the professors acknowledge that Congress does share some of the blame for passing stringent immigration laws while failing to provide adequate funding, they explain:
A categorical refusal to enforce the removal statutes against any deportable alien — effectively, the adoption of an "open borders" policy — would also, we think, be unconstitutional. Even if enforcement resources were constrained, it would be an obvious refusal to perform the constitutional duty of faithful execution of the laws. Yet the logic of the June 15 non-enforcement decision points to the conclusion that the president may adopt exactly that policy if he wishes. If the president may constitutionally permit 15 percent of the nation's illegal immigrant population to remain in the United States without fear of removal, why may he not do the same for 50 percent of that population, or for all of it? True, as long as some funding was available to ICE for enforcement, the president could not claim that an appropriations shortfall justified the total cessation of deportation activities. Still, the president could deliberately allocate ICE's resources in such a way as to achieve essentially that result. But if the president can constitutionally implement an open borders policy on his own initiative and without authorization from Congress, what remains of the immigration law? The June 15 non-enforcement decision thus leads to absurdity. The failure of an agency to perform its ordinary enforcement duties may be so unreasonable that it may be considered unconstitutional, notwithstanding limitations on its resources.
The professors summarize their main points:
First, the common idea that the president has a positive constitutional "authority" to decide not to enforce the civil law is mistaken. The Take Care Clause, coupled with related constitutional provisions, establishes that the president has a duty to enforce the laws. The Constitution confers no express or implied power or authority not to enforce the laws. On the face of it, the Obama administration breached its constitutional duty by refusing to enforce the immigration law in (up to) 1.7 million cases.
Second, the administration cannot rely on a claim of presidential "prerogative" to justify a decision not to enforce the law. American constitutional practice, coupled with the Supreme Court's case law, does indeed suggest that there is a presidential prerogative. But if so, that prerogative is one granted by the Constitution; it is not extra-constitutional. And it is restricted to action for the sake of national security in times of war or sudden crisis. Presidential prerogative does not justify a refusal to enforce the immigration laws in ordinary, non-critical circumstances. Rather, the Constitution tries to solve the problem of reconciling the need for a strong executive with a republican form of government by giving the president broad, undefined powers in the international sphere but circumscribing his power closely in domestic matters.
Third, just as in common law, a range of defenses can be made to a breach of duty, so defenses can be offered for the administration's apparent breach of duty here. The main justifications or excuses that can be used to defend a breach of the duty of faithful execution fall into four main categories: that the "law" whose non-enforcement is at issue is unconstitutional; that enforcement in the particular circumstances would interfere materially with the exercise of another constitutional power of the president (such as those over foreign affairs and national security); that equity in individual cases warrants forbearance in enforcement; and most importantly here, that the enforcing agency lacks sufficient resources for complete enforcement and must therefore use its best judgment how to allocate the resources it has. The administration's non-enforcement decision with regard to the DREAMers does not, despite its claims to the contrary, appear to fall within any of these categories, including the last. It stands, thus far, as an unexcused breach of duty.
Fourth, the administration's decision is the almost inevitable outcome of what has been described as a "de facto" delegation system that Congress has established in the immigration area. The combination of a massive illegal immigrant population, extremely stringent laws regarding deportability, and inadequate resourcing for enforcement, it can be argued, gives the president virtually unfettered control to decide who remains in the country and who is removed. If this understanding of our immigration law system is correct, then that system poses a threat to the traditional conception of the rule of law and its attempt to control arbitrary executive action. It invites a president to create operative, functional "law" covering hundreds of thousands of cases that overtly contravenes statutory law.
The professors note that while the president has broad powers over foreign affairs, his authority over domestic matters is much more narrow. They conclude:
The conception of executive power we have defended is fully consistent with the attribution to the president of broad constitutional powers over foreign affairs, national security, and military policy. The Framers intended to give Congress the dominant role in regulating domestic matters, while giving the presidency, with its distinctive institutional qualities of energy, secrecy, speed, and unity of purpose, the primary responsibility for foreign affairs. Although immigration straddles domestic and foreign policy, Congress, not the president, has the controlling authority in that area.
The report includes an interesting historical overview that ultimately raises many questions about President Obama's end-run around the legislative process.