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”