Caught in the middle.

Photographer: John Moore/Getty Images

Immigration Is Obama's Call. Congress's Too.

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Barack Obama’s much-anticipated executive order on immigration is clever politics, and maybe even a morally inspiring policy. But is it constitutional? Can the U.S. president just announce that he plans not to enforce the laws passed by Congress with respect to millions of people? And if it is constitutional, why is it?

Experts on the right and left have already weighed in. John Yoo, he of the torture memos and the Office of Legal Counsel in the George W. Bush administration, condemned executive action on immigration as long ago as 2012. At the core of his argument lies the constitutional clause that directs the president to “take care that the laws be faithfully executed.” According to Yoo, if the president announces that he’s simply going to ignore duly enacted statutes as a whole, then he’s violated the take care clause.

Never mind that Yoo is probably the most notorious advocate of absolutist executive action since Alexander Hamilton, and that it seems strangely convenient for him to have suddenly discovered a limitation on executive power. Whatever its motivation, Yoo’s argument is serious, and deserves to be addressed seriously.

On the other side is a letter signed by 136 immigration law professors, most of them card-carrying liberals. As the immigration experts describe the issue, the constitutional logic for the president’s authority is straightforward. Part of the president’s responsibility to enforce the law is to use his discretion to decide when and how he will do it. That's prosecutorial discretion -- which the courts have long held to be almost absolute. The president’s Department of Justice can decide which crimes it wishes to prosecute. Similarly, it’s a well-established principle of immigration law that the president can decide which illegal immigrants he will seek to have deported.

The liberal law professors add a further argument: Congress hasn’t given the executive branch anything like sufficient resources to deport every legally deportable alien. That means the president inevitably will have to make choices. What could be constitutionally wrong with making those choices on the basis of a rational policy that takes into account humanitarian values and national self-interest?

As a matter of practical logic, the immigration law experts are surely correct. Immigration laws have never been fully enforced in the U.S., and they probably never will be. The same is true, of course, with respect to criminal laws. It’s not realistic to prosecute everybody, and it is in the interests of good government for the Justice Department to have some guidelines, whether internal or external, specifying how limited resources should be expended.

Nonetheless, the conservative case against de facto presidential amnesty in opposition to clearly expressed congressional intent has some legs. Imagine -- if you’re a tree-hugging liberal with waterfront property -- a Republican president who announced that the executive branch wouldn’t be enforcing laws that limited greenhouse gas emissions by big polluters.  Or imagine a conservative president declaring that she won’t enforce the gun laws except against predicate felons.  

In each of these cases, and the many others like them that are easy to imagine, liberals probably wouldn’t be satisfied with the argument that this was simply bad policy. They would argue that the president was failing his constitutional responsibility to take care that the laws be faithfully executed.

What’s sauce for the goose is sauce for the gander. It isn’t easy to distinguish these upsetting cases from the Obama administration’s forthcoming immigration order. So what, if anything, makes it all right for the president to deport selectively, and announce specific policies through which he will do so? The best answer is that the separation of powers is a complicated principle of interplay between the different branches of government. If Congress wants to make the president enforce the law more generally, it can try to force him to do so by withholding funding for immigration enforcement or, really, for any other program he actually likes. A strongly Republican House and a Republican Senate certainly have the capacity to withhold funding on a range of matters.

When that happens, expect liberals to fulminate about how unreasonable it is for Congress to interfere with the president’s capacity to govern. The truth is, though, that such interference is occasionally necessary to keep the government balanced.

The Obama administration is correct that prosecutorial discretion gives it tremendous authority in how it wants to enforce the law. But it’s not written that such enforcement has to come without cost. Obama is trying to force the Republican Party to shoot itself in the electoral foot by opposing his immigration reform loudly and thereby alienating Latinos. The Constitution gives him the authority to do it. Just don’t forget that the same Constitution authorizes Congress to make the president’s life miserable if he says he won’t enforce the law. And don’t forget that the same authority will belong to a Republican president some day -- and when that happens, Democrats may not like to be reminded that Obama chose that path.

  1. OK, the EPA is an independent agency , a status I discussed here. Imagine then that the administrator of the EPA, appointed by the president and in theory part of the executive branch, made the same announcement.

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To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net