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Immigration: Another Question of Administrative Law Versus Constitutional Faithfulness

Professor Christopher Schroeder asks the following question at Balkinization:

Under our constitutional separation of powers, does the President have the authority to defer the deportation of the undocumented parents of children who are lawfully present in the United States, to permit these persons to apply for work authorization and also to expand the Deferred Action for Childhood Arrivals first announced in 2012? Or is the President violating the Constitution by refusing to execute the immigration laws?

Schroeder contends that “[w]hatever answer you give to the first question, the answer to the second one is a resounding NO.” He reasons that the Office of Legal Counsel prepared a “careful and thorough analysis” of the legal options available to the administration. While some may disagree with OLC’s conclusions, “this only establishes that people can have honest disagreements over how to interpret a statute.” As long as OLC has plausibly concluded that the actions were within the president’s authority, Schroeder contends that there can be no violation of the president’s duty to “take care” that the laws be “faithfully executed.”

Schroeder is right to distinguish between the administrative law question of whether the administration’s new nonenforcement policy will survive judicial review and the constitutional question of whether the law is being faithfully executed. As Schroeder points out, the former is a “garden variety administrative law question” of the sort courts address every day. If the courts should rule against the administration, “then the action will be consigned to the pile of agency actions that have been overturned by courts over the years as exceeding their authorities under the relevant statutes.” But, he goes on, “[t]o my knowledge, in none of these prior decisions has a court ever even contemplated the question of a constitutional violation by the President.”

I made a similar point several months ago with regard to the House’s decision to sue the Obama administration over the Affordable Care Act:

[T]he question the House wants answered is not the question the courts will answer, even if a justiciable case were to be brought by a plaintiff with standing. They will not issue a decision on whether the Secretary, much less the President, has “faithfully executed the laws.” They will decide (at most) whether a particular administrative regulatory action complies with the law. Indeed, they may not even decide that, but merely conclude that the action is of the kind where the court should defer to the agency’s judgment as to whether or not it complies with the law.

Schroeder is also probably correct that the courts are unlikely to strike down the new nonenforcement policy. I say this based not so much on the legal merits of that policy, which I have not studied, but on the generally deferential nature of judicial review with regard to agency action in general and administrative nonenforcement in particular. See CRS Report to Congress, “The Take Care Clause and Executive Discretion in the Enforcement of Law” 8 (Sept. 4, 2014) (“Where Congress has legislated broadly, ambiguously, or in a nonobligatory manner, courts are unlikely to command or halt action by either the President or his officials.”); id. at 15-17 & n. 104 (“It should be noted that the dismissal of a challenge to an administrative nonenforcement decision under the APA is not necessarily recognition by the court that the agency was acting within its authority.”).

Schroeder seems clearly wrong, however, in suggesting that the president’s constitutional responsibilities under the Take Care Clause are met merely because his lawyers advance a plausible or successful defense of the legality of his nonenforcement policy. The Take Care Clause requires the laws be faithfully executed. As Schroeder acknowledges, this means the laws must be executed “honestly.” Johnson’s dictionary provides another pertinent definition of “faithfully” as “with strict adherence to duty.”

This suggests to me that the applicable standard is not, as Schroeder implies, a kind of constitutional Rule 11. It is not enough that the president’s action (or inaction) can be justified by a legal argument that passes the laugh test. It is not enough that the position taken by the president or his subordinates is sufficiently reasonable that a court will give it deference. Indeed, even a clearly legal action could violate the Take Care Clause if taken for an “unfaithful” reason (e.g., bribery).

As Timothy Sandefur explains here, there is a good case that President Obama’s immigration nonenforcement policy violates the Take Care Clause because it is explicitly motivated by Obama’s disagreement with current law and his frustration that Congress will not act to change it in accordance with his wishes. Sandefur emphasizes that the president’s duty is to execute the laws faithfully: “As in, in good faith. As in, in their letter and spirit. If you were writing a Constitution and wanted to write language that would, as clearly as possible, forbid the president from choosing which laws to enforce and which not to, just to suit his own personal desires, this language is exactly what you would choose.”

Professor Ilya Somin, on the other hand, argues that “all modern presidents inevitably make policy choices about which violations of federal law to prosecute.” Responding to Sandefur’s argument that Obama is refusing to enforce immigration law simply because he disagrees with it, Somin contends that “in a world where, due to budgetary constraints and the enormous scope of federal law, the president can only prosecute a small fraction of all violators, he can legitimately choose to prosecute those offenses he considers most severe based on policy and moral judgments.” Somin also stresses that the immigration laws give the executive branch broad discretion and that other presidents (namely Ronald Reagan and George H.W. Bush) “systematically exempted large numbers of illegal immigrants from deportation.”

There is no doubt significant force to Somin’s argument, but I am not sure he comes to grips with Sandefur’s point about the role of subjective motivation in determining the “faithfulness” of an executive action. We can assume for argument’s sake that Obama had the legal authority to adopt the substantive policy in question and that the policy was indistinguishable in pertinent respects from that of prior presidents. However, the question remains whether the policy was adopted for impermissible reasons. (The law routinely makes this distinction, for example, in the employment context, where an employer has the authority to terminate employees at will but may not do so for an impermissible reason).

Somin contends that it is perfectly permissible to set enforcement priorities based on moral and policy considerations. That may be so, but President Obama has done considerably more than that. He has announced publicly and repeatedly that he wants the law changed and that if Congress does not oblige he will effectuate as many of those changes as possible by executive action. This seems rather different than setting enforcement priorities.

Admittedly the Reagan and Bush executive actions also appear to have gone beyond merely setting priorities. But these actions were not designed to circumvent Congress, which apparently did not object to them. Whether or not a general consensus (within the political class, at least) in favor of a particular nonenforcement policy validates it for purposes of the Take Care Clause, the absence of controversy over these prior instances surely does not establish that it is legitimate for the president to use executive action as a remedy when Congress refuses to change the law.

Moreover, if the Reagan-Bush nonenforcement policies are viewed as “precedents” for the Obama nonenforcement policy, it is fair to ask what might be the future precedential effect of the Obama policy. Imagine the following scenario. A federal agency is charged with enforcing two laws. Law A is an important priority for an incoming president and her party, but they generally oppose Law B, which is important to the opposition. Can the new president instruct the agency (1) to use all of its resources to prosecute Law A cases rather than Law B cases, resulting in a de facto nonenforcement policy with respect to Law B; (2) to adopt a nonenforcement policy with respect to Law B until such time as Congress agrees to her demand for sweeping changes to Law B; or (3) to adopt a Law B nonenforcement policy until such time as the opposition party agrees to completely unrelated legislative demands.

Although it might be politically controversial, option (1) would be widely accepted as constitutional for the reasons explained by Professor Somin. This acceptance would require that the president’s directive be ostensibly premised on limited resources and the importance of directing those resources toward Law A violations, rather than on her hostility to Law B. OLC wrote in its memorandum on the new Obama nonenforcement policy that “the Executive cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences,” but what it meant is that the Executive “should not” adopt such a guise. If the president adopts a policy premised on limited resources, no one (certainly not OLC) is going to inquire as to her actual motives.

But in option (2) there is no guise, just a straightforward political power play. And that is the option most closely resembling what Obama has done with respect to immigration. Acceptance of the Obama “precedent” would seem to allow a president to adopt a nonenforcement policy as part of the legislative bargaining process. And if the president can do that with respect to the law not being enforced, it is hard to see why option (3), using it for unrelated legislative bargaining, would be off-limits either.

Now it may be argued, as Somin suggests, that these distinctions do not really matter. Presidents have such a large scope of discretion that it is inevitable that they will use that discretion for political or other dubious purposes. Attempting to restrain these actions based on subjective motivations will only encourage future presidents to be less candid about their true reasons for taking executive actions. Maybe that is so. But one should also consider the possibility that accepting the Obama precedent will further undermine the norm of “strict adherence to duty,” and replace it with “I can do whatever my lawyers say I can get away with it.”

As in the case of the Obamacare lawsuit, the courts cannot and will not answer these questions regarding the president’s constitutional obligations under the Take Care Clause. Only Congress has the institutional capacity to address them.

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