Earlier this week, a federal judge in Texas ordered a temporary halt to the implementation of President Obama’s executive action that would defer the deportation of roughly 4.9 million immigrants. The rhetoric in his opinion echoed administration opponents who have criticized President Obama for executive overreach. The president’s critics are clearly wrong when they claim he has exceeded his authority as chief executive. Ironically, though, much of the blame for their views may rest with one of the policy’s biggest supporters: Obama himself.
As immigration rights advocates pushed the president to take executive action in his first term and early in his second, the president repeatedly resisted, claiming that he didn’t have the authority to take the kind of action at issue in the Texas case. “I am president, I am not king. I can’t do these things just by myself,” he told Univision in 2010. In 2011, he discussed meeting with “immigration advocates ... [who] wish I could just bypass Congress and change the law myself.” To these supporters, he responded “that’s not how a democracy works.” In 2013, he repeated the same message: “I’m the president of the United States. I’m not the emperor of the United States. My job is to execute laws that are passed, and Congress right now has not changed what I consider to be a broken immigration system.”
The president’s comments may have been motivated more by his sense of immigration politics than his views on immigration law—reports in 2014 indicated that Obama was “dial[ing] down the partisan rhetoric on immigration ... [to] give House Republicans some breathing room to try to pass legislation”—but they nonetheless fueled detractors. Some on the right argued that the president didn’t have the authority to take executive action on immigration; when Obama ultimately did take action, they maintained he was simply doing so in order to achieve unilaterally what he could not achieve by working with Congress. Indeed, in the decision out of Texas, the district judge wrote, “The Government must concede that there is no specific law or statute that authorizes [Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)]. In fact, the president announced that it was the failure of Congress to pass such a law that prompted him ... to ‘change the law.’” (The judge formally based his decision to halt implementation not on the substance of the executive action, but on the government’s failure to comply with certain procedural requirements he felt were warranted.)
But President Obama’s opponents are as wrong now as he was then: He does have the authority to take executive action on immigration action, and that executive action isn’t a response to congressional inaction at all. Rather, it’s a response to congressional action—actions by past Congresses that have passed immigration laws that it is now the responsibility of the executive branch to enforce. There’s nothing novel about this. Presidents are always asked to exercise discretion in determining how best to implement laws passed by Congress (a responsibility and power often referred to as “prosecutorial discretion”), and that’s exactly what the Framers of our Constitution intended. When the Framers drafted the Constitution, their views on the presidency were shaped not only by their experiences under British rule, but also by their experiences under the Articles of Confederation, the precursor to the Constitution. The Articles lasted just eight years, and one of the central weaknesses that led to its failure was the absence of a strong executive branch capable of enforcing the nation’s laws.
The Framers remedied this problem in the Constitution by creating a strong executive branch headed by a single president and vesting that president with the obligation to “take Care that the Laws be faithfully executed.” Determining how best to enforce the law and what the laws mean are longstanding manifestations of that obligation. As then-Justice William Rehnquist wrote for the Supreme Court nearly thirty years ago in Heckler v. Chaney, an “agency’s decision not to prosecute or enforce [a law] ... is a decision generally committed to an agency’s absolute discretion.” As he explained, the executive branch is in the best position to weigh competing priorities and to determine how best to enforce the law.
That’s no less true in immigration than elsewhere. Indeed, the fact that “there is no specific law or statute that authorizes DAPA” is beside the point; there are lots of specific laws about immigration already on the books, and those laws necessarily require the president to make decisions about how best to use limited executive branch resources in implementing the law. After all, there are roughly 11.3 million undocumented immigrants in this country, and Congress has only provided funding to cover 400,000 removals per year. As the Supreme Court recognized as recently as 2012 in Arizona v. United States, a “principal feature of the removal system is the broad discretion exercised by immigration officials,” and there are circumstances in which “federal officials ... must decide whether it makes sense to pursue removal at all.”
The judge in Texas acknowledged this broad discretion, but repeatedly rejected the relevance of that principle in his opinion. Among other things, the judge described Obama’s action as an “affirmative act” that went beyond simply exercising prosecutorial discretion, and he also accused the secretary of the Department of Homeland Security of “not just rewriting the laws,” but “creating them from scratch.” These critiques imply that the president’s actions are particularly problematic because he has announced them as a formal and explicit policy, rather than deferring removals on a case-by-case basis. Put differently, the judge seems to be suggesting that this executive action is simply the president’s attempt to make law where Congress failed to do so.
The president, however, was not attempting to make law without Congress. An executive action is not the same as a law passed by Congress; most significantly, it can be undone by a subsequent president in a way that a law passed by Congress could not be. And, of course, this executive action doesn’t go nearly as far as what the president has repeatedly asked Congress to do.
Moreover, there is no reason to think the articulation of guidelines for the exercise of prosecutorial discretion is more problematic than the exercise of that discretion. As a group of law professors noted after President Obama announced this executive action, articulating these policies “secure[s] greater transparency by having enforcement policies articulated explicitly by high-level officials, including the President” and provides “[i]mmigration officials and officers in the field ... with clear guidance while also being allowed a degree of flexibility.” Those benefits “promote the values underlying the rule of law,” the law professors point out.
There are certainly limits to the president’s power when it comes to determining how best to implement what’s passed by Congress. But to figure out those limits one must look to the laws Congress has passed, not the ones that it didn’t. President Obama’s executive action in immigration is fully consistent with those laws; it’s a shame he once said that he didn’t have the authority to take executive action pursuant to the laws passed by previous Congresses.
At the end of the day, what matters is not what President Obama said about the legality of his action; what matters is what the laws and precedents say, and they make clear that his action was lawful. When the Fifth Circuit reviews this week’s immigration decision on appeal, it should vindicate the views of the legal advisors who approved this action, and not the political advisors who presumably told him to say they wouldn’t.