by Peter M. Shane, the Jacob E. Davis and Jacob E. Davis II Chair in Law, Ohio State University, Moritz College of Law. He is the author of Madison’s Nightmare: How Executive Power Threatens American Democracy (University of Chicago Press 2009).
*This post originally appeared on the blog for Washington Monthly.
It’s December, 2008. President Bush foresees economic calamity if the U.S. auto industry collapses. Congress has failed to enact his recommended rescue plan despite majority support in both Houses. His party has just taken a drubbing at the polls. What happens? He is advised that, under the technical wording of the Emergency Economic Stabilization Act of 2008, the Treasury Department can use the Troubled Assets Relief Program (TARP) to effectuate the needed rescue. Presumably with Bush’s approval, it does so. The president states explicitly that he is responding to Congress’s inability to enact the needed legislation. Was this “declaring war on the American people?” No, it is how governance and the rule of law work in the modern administrative state. The executive branch, facing a problem to which Congress has not responded, canvasses its existing statutory authorities to see if discretion already exists to address a national need.
Fast forward nearly six years. President Bush’s successor confronts three realities on immigration policy. The first is that Congress has not funded – and cannot plausibly finance – a system of immigration enforcement adequate to its caseload. The Pew Research Center estimates that the number of undocumented immigrants in the U.S. was 11.3 million in 2013.
The Obama Administration deported a record 400,000 persons in 2012. If the government continued at that pace, deporting the current population of undocumented persons would take more than 28 years. Even that massive effort would clear the decks, so to speak, only if no undocumented persons were to cross our borders between now and the year 2042.