Originalism, the Unitary Executive, and the Constitutional Case for Obama’s Immigration Policy

May 21, 2015
Guest Post

by Ilya Somin, Professor of Law, George Mason University School of Law; author of The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain (University of Chicago Press).

The Obama administration’s immigration policy deferring deportation for more than four million illegal immigrants has been the focus of extensive constitutional debate since it was announced last fall. One conservative federal trial judge has ruled that the policy is unconstitutional, and another has concluded that it violates the Administrative Procedure Act, on the basis of arguments that suggest it is likely unconstitutional as well.  Despite these rulings, the Obama policy is constitutional, and appellate courts would do well to uphold it. Ironically, the case for it is particularly strong if we accept two principles that many of the policy’s conservative critics strongly support in other contexts: the unitary executive and limiting the scope of congressional power  as close as possible to its original meaning. At the same time, the Obama policy highlights the dangers posed by executive discretion in a world where there is far more federal law than any administration can effectively enforce.

In many ways, the administration policy is simply an exercise of longstanding executive discretion in deciding when to enforce federal laws. There are more than 11 million illegal immigrants in the United States, and no administration is likely to deport more than a small fraction of them. Similarly, scholars estimate that a majority of Americans have violated federal criminal law at some point in their lives. Only a small fraction of these offenders are ever prosecuted. The executive generally has broad discretion to decide which suspected lawbreakers to go after and which ones to ignore.

Many of  the administration’s critics claim that, by choosing not to enforce deportation against a large category of aliens, Obama is violating the Take Care Clause of the Constitution, which requires the president to “take care that the laws are faithfully executed.” But whatever else that Clause might mean, it surely does not require the president to enforce every federal law to the hilt, especially in a world where it would be literally impossible to even come close to doing so. Otherwise, virtually every president would be in constant violation of the Clause.

Both judicial rulings against the Obama policy emphasize that it goes beyond ordinary executive discretion because it replaces “case by case” discretion with a general rule imposed by the president that categorically excludes broad categories of aliens from deportation. The categories in question cover numerous undocumented migrants who are either parents of U.S. citizens or permanent residents, or entered the U.S. as children. As Judge Arthur Schwab put it in the first ruling, the policy “provides for a systematic and rigid process by which a broad group of individuals will be treated differently from others… rather than case-by-case examination.” But the difference between case by case examination and categorical rules is one of degree rather than kind. Unless case by case discretion is completely arbitrary, it must be guided by some sort of generalizable criteria, such as the severity of the offense or the danger posed by the offender. And if such general rules can be applied by low-level law enforcement offenders handling particular cases, they can also be applied systematically by the president. After all, lower-level law enforcement officials are ultimately merely the president’s agents and subordinates.

This consideration should be especially salient to advocates of the “unitary executive” theory, which holds that, under Article II the Constitution, all executive branch officials and agencies must ultimately be under the control of the president. Given the vast scope of modern federal law enforcement, often the only effective way for the president to exercise control over enforcement discretion is to issue general rules that bind his subordinates. In recent decades, the unitary executive theory has been championed by conservatives – the group that has also been most vehement in denouncing Obama’s immigration policy.

It is also worth noting that this is far from the only case where federal law enforcement agencies have chosen to systematically ignore a large category of lawbreakers. For example, federal prosecutors virtually never target marijuana possession by students on college campuses, even though such use is widespread and ubiquitous. Indeed, the number of people -- including the last three presidents of the United States  -- who have gotten away with violating federal law in this way probably greatly exceeds the number exempted from deportation by Obama’s new immigration policy. The main difference between the marijuana policy and Obama’s action is that the former is merely implicit, while the latter has been officially announced. But this difference cuts in Obama’s favor rather than against him, since it enables greater transparency and facilitates public debate.

I am no fan of the War on Drugs. But it seems to me that aliens whose only offense is fleeing a life of poverty and oppression in the Third World have a stronger claim to benefit from executive discretion than college students who wish to experiment with recreational drugs. Indeed, it is hard to find any other broad category of lawbreakers who have a stronger moral justification for violating the law.

Obama’s opponents are on stronger ground in emphasizing that the new policy goes beyond deferring deportation because it allows many of the covered aliens to be legally employed in the US, which is otherwise forbidden by federal law. But, as Georgetown law professor Marty Lederman points out, this part of the policy is explicitly authorized by the 1986 Immigration Reform and Control Act, which specifically permits employment of aliens who are  “authorized…to be employed…by the attorney general.” The president, of course, has the power to direct the attorney general to issue such authorizations – especially under a unitary theory of executive power. In addition, the work permits could be interpreted or restructured as simple orders to law enforcement officials to refrain from enforcing laws banning employment of illegal aliens in such cases.  Even if this part of the policy is unconstitutional, it does not follow that courts should also strike down the more significant deferral of deportation.

A final irony of the debate over the Obama immigration policy is that the immigration laws the president has chosen not to enforce in some cases, go against the original meaning of the Constitution and expand federal power beyond the scope established by the Founders. While Article I of the Constitution gives Congress power over “commerce” with foreign nations and the “naturalization” of foreigners, it does not give it a general power to restrict international migration. The original meaning of international “commerce” did not encompass mere movement across borders, just as Congress’ power over interstate commerce (enumerated in the very same phrase of Article I) was not originally understood to include the power to restrict interstate migration.  This limited understanding of federal power was one of the reasons why the federal government pursued a virtual open borders immigration policy until racist xenophobia led to the enactment of the Chinese Exclusion Act of 1882.

Broad congressional power to restrict migration has long been endorsed by Supreme Court precedent,  beginning with an 1889 decision upholding the Chinese Exclusion Act.  Although its reasoning is deeply at odds with the text and original meaning of Article I, it may be justifiable from the standpoint of “living Constitution” theory. But it should be far more problematic for constitutional originalists and supporters of strong enforcement of limits on  congressional power. These overlapping groups of course include many of Obama’s conservative critics.

Although Obama’s policy is constitutional, it is not completely unproblematic. From the standpoint of immigrants, the very factors that help make it legal also weaken its effectiveness. As an act of executive discretion, the policy can be reversed at any time by either Obama himself or a successor. Although the president hopes that the beneficiaries of the new policy will be able to “come out of the shadows,”  this aspect of the situation might incentivize many to keep at least one foot safely out of the light.

The president’s sweeping exercise of executive discretion highlights the enormous power enjoyed by the modern executive in a world where nearly everyone is guilty of violating some federal law, but only a small fraction of offenders can be  brought to justice. This state of affairs enables presidents to exercise enormous discretion in deciding who to target. Such discretion  is easily abused in a variety of ways. Even many who trust the Obama administration to use that discretion wisely may not have similar confidence in future presidents. More generally, an America where almost everyone is a lawbreaker is a nation where the rule of law is increasingly displaced by the rule of executive discretion. Illegal immigrants are not the only ones who must to some degree live in “the shadows” of the law. Like undocumented migrants who manage to avoid deportation, most of the rest of us are also free only in so far as law enforcement officials are unaware of or choose to overlook our violations of labyrinthine federal laws.

The administration’s immigration policy is both constitutional and a notable improvement over the previous status quo. But the silver lining of its virtues does not entirely obscure the underlying cloud of the overextension of federal law and the ways in which it puts nearly all of us at the mercy of executive discretion.