Balkinization: To the extent permitted by law

To the extent permitted by law

Guest Blogger

Shalev Roisman

There has been much uproar over a Presidential Memorandum issued this week titled “Memorandum on Excluding Illegal Aliens from the Apportionment Base Following the 2020 Census.” This memorandum has largely been understood to be a directive to exclude undocumented people from the apportionment base calculated from the census. In particular, the memorandum states that it is now “the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status.” As many have pointed out, this seems to conflict with the text of the Fourteenth Amendment which requires counting “the whole number of persons in each state,” not the whole number of “citizens” or “people with lawful presence,” as well as the prevailing understanding of the governing statute.

But, upon close examination of the presidential memorandum, it is not clear that it actually requires excluding such people or that it requires much to be done at all. This is because in the same sentence declaring this policy, the memorandum includes an important modifying clause. It doesn’t just say “it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status,” it adds “to the maximum extent feasible and consistent with the discretion delegated to the executive branch.” In short, it is the policy of the United States to do this, if it is legal to do so—if doing so is “consistent with the discretion delegated to the executive branch.” Thus, if it is correct that excluding undocumented people from the apportionment base would violate the Constitution or the relevant statute, as many have suggested, then the memorandum does not require that the apportionment base change at all.

This type of modifying language appears elsewhere in the memorandum as well. The end of section 2 states “I have accordingly determined that respect for the law and protection of the integrity of the democratic process warrant the exclusion of illegal aliens from the apportionment base, to the extent feasible and to the maximum extent of the President’s discretion under law.” Again, this is not necessarily a directive to exclude undocumented people from the count, it is a directive to do so “to the maximum extent” doing so is lawful. If it is not lawful to do so, this directive requires doing nothing.

So what are we to make of the inclusion of this modifying language? First, it is important to recognize that such modifying language is not uncommon for presidential directives. The language used is more typically “to the extent permitted by law” but the effect is the same—to modify a directive to make clear it should only be followed to the extent the law permits. On top of this, it is standard for presidential directives to contain a “General Provisions” section at the end—as this memorandum did—stating that the relevant directive “shall be implemented consistent with applicable law and subject to the availability of appropriations.” This general disclaimer language would seem to make the modifying language redundant. If a directive “shall be implemented consistent with applicable law” surely that implies it can only be carried out “to the extent” “consistent with the discretion delegated to the executive branch” or “permitted by law.” So why add the additional modifying language?

There are several reasons such language might be included in the body of a directive, rather than just in the General Provisions at the end. Maybe the directive contains several directions but some are legal only in certain applications but not others, and the President wants to clarify that only the lawful applications are being ordered. It might be too difficult to explain precisely which applications would be lawful, so “to the extent permitted by law” might be added to alert whoever is implementing the directive that there might be unlawful applications that ought to be avoided. Perhaps executive branch lawyers have been unable to come to a definitive conclusion or consensus on which applications are lawful and which are not, so they have deferred the decision to when the directive will be implemented. In short, there are some legitimate reasons to include such language even if it seems redundant.

But there is at least one situation where it would be inappropriate to include such language. That is where the universe of applications that would be lawful is zero—a null set. If there are no ways the directive can be followed in a way “permitted by law” or “consistent with the discretion delegated to the executive branch,” then the directive is meaningless. It is not a presidential directive at all—or at least not a legal one.

For example, imagine a directive stating that “it is the policy of the United States to remove United States citizens from the territory of the United States solely and exclusively based on their religion, to the extent permitted by law.” The Constitution does not permit removing American citizens from the United States solely and exclusively based on their religion. There is no extent to which such removals would be “permitted by law,” and thus no removals could occur pursuant to this directive. Indeed, it would be hard to call this a “directive” at all. It would have no legal effect. It might be better thought of as a political statement (an odious one)—an attempt to get public attention, to shift the window of acceptable discourse, to signal toughness on an issue, or alignment with a certain population or belief. It might be many things, but it would not be a lawful policy directive.

Indeed we might think that the more work the modifying language does, the less policy the directive actually accomplishes and the more likely it is to be intended primarily as a political document.

In any event, how are we to interpret the addition of this language at key points in the census memorandum? In terms of policy or political intent, it is hard to know if the President truly intends to exclude undocumented people from the apportionment calculation rather than try to score political points by raising an issue that he thinks will resonate with his base. This would certainly not be the first of President Trump’s formal presidential directives seemingly geared less at enacting policy and more at sending a political message. (Nor is President Trump the first President to use formal directives in this way.) I have no special expertise about what President Trump’s intent was here. He may well think he has the authority to do this and this might be an attempt to actually exercise that power. But, it seems valuable to raise the possibility that this presidential memorandum is not actually geared at excluding undocumented people from the apportionment base, but rather at gaining press attention for a perceived attempt to do so. And the addition of this modifying language might have given the President the ability to do this with legal sign-off within the executive branch.

The implications for such internal executive branch legal review are worth exploring further. It is impossible to know from the outside what the internal legal review for this memorandum entailed. While the Office of Legal Counsel (OLC) must approve executive orders and proclamations for “form and legality,” this requirement does not attach to presidential memoranda such as this one. So perhaps OLC did not sign off on this directive at all. But, if OLC did sign off on this memorandum, it must have concluded either that excluding undocumented inhabitants of a state from the apportionment base is lawful at least in some circumstances, or that it was proper for the Office to certify as “legal” a presidential directive with no lawful applications. Both possibilities would be problematic. If, on the one hand, OLC believed such exclusion from the count is lawful, they have much to grapple with on the merits. If, on the other, they were willing to deem “legal” a claimed exercise of presidential power that cannot be done lawfully by adding modifying language that would leave the directive with only political—but no legal—effect, this would signal undesirable politicization at OLC. Neither possibility would give much comfort. And, if the White House was willing to sign off on this memorandum without the legal approval of the Department of Justice on the matter, well, that doesn’t give much comfort either.

Shalev Roisman is an Associate Professor of Law at the University of Arizona James E. Rogers College of Law. He served as an Attorney-Adviser in the Office of Legal Counsel in the U.S. Department of Justice from 2015-2017. You can reach him by e-mail at sroisman at arizona.edu.

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