For the Symposium on Administrative Reform of Immigration Law
Under our constitutional system of separation of powers,
does the President have the authority to defer the deportation of the
undocumented parents of children who are lawfully present in the United States,
to permit these persons to apply for work authorization and also to expand the
Deferred Action for Childhood Arrivals first announced in 2012? Or is the President violating the
Constitution by refusing to execute the immigration laws?
Here are three reactions to these questions.
First, these two
questions are not opposite sides of the same coin. Whatever answer you give to the first question,
the answer to the second one is a resounding NO. The allegation that the President is
violating the Constitution rests on the claim that he is violating his duty to
take care that the laws be faithfully executed.
That depends crucially on what it means to “faithfully execute” a law. In 1823, Attorney General Wirt wrote that the
duty requires that the law be executed “not with perfect correctness of
judgment, but honestly.” That
description makes the best sense of the language of the Constitution; it reflects
the wisdom of the Founders who were practical people fully aware that all
humans, including Presidents, are fallible; and it appreciates the background
understandings of the time.
The 33 page legal opinion
issued by the Department of Justice’s Office of Legal Counsel analyzes options
available to the President in executing the existing immigration laws. It is a careful and thorough analysis. I find it a convincing defense of the
President’s actions, but even if you don’t agree, this only establishes that
people can have honest disagreements over how to interpret a statute. (For the views of one very distinguished administrative
law professor who disagrees with my assessment of the OLC opinion, see Peter
Schuck’s op-ed
in the NYT.) That is enough to secure a
negative answer to the second question posed above.
Nonetheless, the President’s critics – and especially the
House Republican majority – want to wage a major battle with the President over
the extent of his executive authorities, his ability to “run around Congress,”
to behave as an emperor or king, or to “shred the Constitution.” My
second response is that the OLC opinion demonstrates that the President’s
immigration actions are going to be a very poor field on which to wage that
battle. The question of the legality
of granting deferred action and making application for work authorization
available to 4.4 million undocumented is, as a legal matter, a garden variety
administrative law question of the extent of the discretion that has been
delegated, originally to the Department of Justice and later by transfer of
authority and additional legislation to the Department of Homeland
Security. A court might find that DHS’s deferred action
directive is outside the scope of its statutory authority. I doubt it, but let’s assume that is
possible. If it does, then the action
will be consigned to the pile of agency actions that have been overturned by
courts over the years as exceeding their authorities under the relevant statutes. To my knowledge, in none of these prior
decisions has a court ever even contemplated the question of a constitutional
violation by the President. A court
would not go there this time around, either.
The OLC opinion is devoid of any invocations of presidential
authority to ignore the Congress. To the
contrary, one of the principles it identifies as limiting executive discretion
is that decisions ought to be “consonant with, rather than contrary to, the
congressional policy underlying the statues the agency is charged with
administering.” It then makes the case
that the actions announced by the President satisfy this principle. Again, you may disagree, but it is extremely
difficult to see how large questions of constitutionality could be teed up in
any litigation over these decisions, because as I have said, the President
seems to be making a conventional case about the scope of authority granted to
an administrative agency by Congress, pursuant to statute.
To be sure, the move from the status quo ante to the
deferred action/work authorization regime outlined in these actions is a
dramatic, profound and extremely consequential change, most especially for the 4.4
million affected undocumented workers and their families and loved ones. Can it really be the case that the Congress
has delegated the ability to make such a change to the executive without
requiring the President to return to the Congress for new legislation?
I suspect this question – basically, “under our system of
government, how can this be?” – would continue to fuel debate and anxiety over
the President’s actions even if the Constitutional questions were taken
entirely off the table. (That, of
course, is not going to happen. We have
become all too accustomed to believing that whenever our government goes
seriously off the rails, however the President’s critics may define those rails,
they must be violating the Constitution.)
Surely ours cannot be a system of government that permits the President
to take such dramatic action, affecting so many people, angering so many
others, when making similar changes in the immigrations laws has been the
subject of active legislative debate, when the Congress has been unable to find
a satisfactory bill to enact, and when the leadership after the recent
election -- but before his unilateral
actions -- has said they want to work with the President to find a way forward
on immigration?
This brings me to my
third response: For almost all
discussions of presidential power with respect to domestic policy, whether it
be immigration enforcement, clean air regulation, implementation of the
Affordable Care Act, or other policies, it is essential to start with the basic
legal building blocks of the modern administrative state. These blocks are not etched in stone, to
butcher a metaphor, but they are currently foundational, and until one or more
of them is changed they will make a great many questions of expansive executive
authority garden variety issues of administrative law and not constitutional
crises.
Here is the way a leading undergraduate political science
text on the Congress begins its discussion of “congressional control of the
bureaucracy:”
“’Congressional power … is never
lost, rarely taken by force, and almost always given away.’ Because no law can
be sufficiently detailed to cover every conceivable circumstance, Congress
allows executive officials wide discretion in implementing the laws it
passes. This delegation of authority
occurs because legislators lack the time, knowledge, or expertise to address
the complexities of contemporary administration.” [Davidson, Oleszek, Lee and
Schickler, Congress and Its Members 330 (14th ed., 2014)
Over the years,
Congress has enacted many laws that only reinforce the truth that they “allow[]
executive officials wide discretion,” discretion that includes interpreting
ambiguous statutory content, filling in gaps, applying old statutes to
situations not even conceived of at the time of enactment, and determining
priorities in both the civil and criminal enforcement of the laws.
On the interpretive front, the canonical Supreme Court
rendering of the executive branch’s interpretive discretion is found in Chevron v. NRDC. In this 1984 case, the Court held that
whenever the Congress had spoken in a statute to “the precise question at
issue,” the agency must follow the decision of the Congress. Otherwise, the agency was authorized to
choose any “permissible construction” of the statute. In the years since Chevron, whenever a
reviewing court has found that the statute has not spoken to the precise
question at issue, the court’s review of the agency’s construction of the
statute has tended to be very permissive, indeed. Rob Glicksman and I have done a review of
federal decisions reviewing EPA decisions in the 1990s in which we found that in
these so-called Chevron Step Two cases, EPA won 93% of them. We have compiled but not completely analyzed
raw data for the 2000s, but the Chevron Step Two data look similar. Studies by others, not limited to review of
the EPA, are to the same effect.
Under the Chevron framework, Congress has multiple means for
controlling executive discretion. It
can, for example, enact a law that prohibits deferred action for the persons
for whom the President wishes to establish deferred action. A bill
passed the House this summer that would have done this with respect to his
initial deferred action decision in 2012, but it never received a vote in the
Senate. Alternatively, it could
establish that such persons should be placed in the highest priority for
deportation, which would not directly bar deferred action but would defeat the
administration’s efforts to assign a low priority to such persons’ deportation,
effectively doing the same thing. Or it
could bar by statute considering keeping families intact as any kind of
positive consideration for any of the mechanisms that currently exist for
granting leniency or temporary exemptions from deportation. The OLC opinion places significant weight on
that factor in justifying the President’s decision; eliminating that facotr
would require a rethinking of its legal basis and might well prevent it.
So far as the existing
immigration laws are concerned, however, neither this Congress nor any prior
Congress has placed any of these limitations into the statute. In providing very little by way of
limitations on enforcement decisions, the Immigration and Naturalization Act is
consistent with the vast majority of laws that the Congress passes. In such cases, the Supreme Court has been, if
anything, even more permissible than its Chevron formulation. In Heckler
v. Chaney, written by Justice Rehnquist one year after Chevron, the Court ruled that an agency’s decision
whether to enforce or decline to enforce a statute was a question over which it
had so much latitude that a Court ought not even review that decision to see whether
it met the “permissible construction” standard.
Heckler left open the possibility that a litigant might be able to
convince a court that an agency had “consciously and expressly adopted a
general policy that is so extreme as to amount to an abdication of its
statutory responsibilities.” Here – and
unlike Heckler – there certainly is an express and consciously adopted general
policy to challenge, but so long as enforcement resources at DHS permit going
after at most 400,000 deportations a year, it will be very hard to make the
case that DHS is abdicating its responsibilities under the statute.
Whatever one may think of the desirability of the President taking
these dramatic immigration steps, this is the basic legal framework within
which executive branch decisions regarding how to execute the laws are made today.
As a matter of legal permissibility, such actions need to be analyzed
within this framework, under which decisions of great moment can and are made
without reverting to new
congressional action, precisely because prior
congressional action has put in place statutes giving discretion to the
executive branch. That discretion
remains in place until changed by future congressional action. The Supreme Court is quite unlikely to save
Congress from its propensity to write statutes that give the executive branch these
authorities. The modern Court firmly
believes that the amount of discretion granted to an agency by statute is
almost entirely for Congress to decide.
The last time it heard a challenge to a statute based on Congress giving
too much power away was American Trucking
Association v. Whitman, and there, in an opinion by Justice Scalia, the
Court reaffirmed a strong disinclination to police statutory delegations of
decision making authority.
As President, Barack Obama is as entitled as any other
President to act within this legal framework.
Of course, any particular action must fit not only within the general
framework just sketched out above; it must also be consistent with existing
statutory law in the all the ways the framework requires. In the case of the immigration laws, the
particular actions he announced last Thursday night satisfy those requirements.
Christopher H.
Schroeder is Professor of Law and Public Policy Studies at Duke
University. He can be reached at
schroeder@law.duke.edu.