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.” Continue reading “Immigration: Another Question of Administrative Law Versus Constitutional Faithfulness”

CRS on the Take Care Clause

This September 4, 2014 CRS memo entitled “The Take Care Clause and Executive Discretion in the Enforcement of Law,” (hat tip: Mort Rosenberg) is helpful background for understanding both the House lawsuit against the Obama administration and the controversy over the President’s executive action on immigration. However, as is not uncommon for CRS reports, there is a good deal of “on the one hand, this, and on the other hand, that.”

Here is the summary:

The Take Care Clause would appear to stand for two, at times diametrically opposed propositions—one imposing a “duty” upon the President and the other viewing the Clause as a source of Presidential “power.” Primarily, the Take Care Clause has been interpreted as placing an obligation on both the President and those under his supervision to comply with and execute clear statutory directives as enacted by Congress. However, the Supreme Court has also construed the Clause as ensuring Presidential control over the enforcement of federal law. As a result, courts generally will not review Presidential enforcement decisions, including the decision of whether to initiate a criminal prosecution or administrative enforcement action in response to a violation of federal law.

In situations where an agency refrains from bringing an enforcement action, courts have historically been cautious in reviewing the agency determination—generally holding that these nonenforcement decisions are “committed to agency discretion” and therefore not subject to judicial review under the Administrative Procedure Act. The seminal case on this topic is Heckler v. Chaney, in which the Supreme Court held that an “agency’s decision not to take enforcement action should be presumed immune from judicial review.”

However, the Court also clearly indicated that the presumption against judicial review of agency nonenforcement decisions may be overcome in a variety of specific situations. For example, a court may review an agency nonenforcement determination “where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers,” or where the agency has “’consciously and expressly adopted a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities.”

As such, it would appear that Congress may overcome the presumption of nonreviewability and restrict executive discretion through statute by expressly providing “meaningful standards” for the manner in which the agency may exercise its enforcement powers.

Nevertheless, legislation that can be characterized as significantly restricting the exercise of executive branch enforcement decisions, in either the criminal, civil, or administrative context, could raise questions under the separation of powers.