PRESIDENT OBAMA’S IMMIGRATION EXECUTIVE ACTION: WHAT ARE CONGRESS’ REAL OPTIONS?

President Obama’s Immigration Executive Action:  What Are Congress’ Real Options?

President Obama on November 20 announced executive actions (referred to here as “the Order”) that will have the effect of preventing the deportation of perhaps as many as four to five million “illegal” immigrants and providing many of them with work permits.[1]  The President ordered that (as a practical matter at least) federal officials should not enforce the immigration laws against various categories of immigrants who meet certain conditions.  Some members of Congress view this sweeping action as an abuse of executive power.   This post examines its constitutionality and the very limited responses available to Congress.  It concludes that Congress can either pass immigration legislation acceptable to the President, or wait until after the 2016 election, because Congress cannot successfully block the President’s Order.

The  President is the nation’s chief law enforcement officer.  The constitutional requirement that the President “take care that the laws be faithfully executed” imposes a duty to enforce the laws on the President, and with that duty necessarily comes the power to enforce.  The important question is how the duty is defined.  At one end of the enforcement spectrum, the President cannot simply refuse to enforce a clearly constitutional law; for him to do so would be an impeachable offense.[2]  At the other end, except in extraordinary cases, Congress cannot remove all discretion from the President about how a law should be enforced, because it would be usurping his/her constitutional authority.  The difficult questions about constitutionality occur in the middle of the spectrum, which is where discretion exists and President Obama’s action occurs.

How broad is a president’s discretion to enforce–or in this case, to not enforce–the law?  This issue has existed since Thomas Jefferson’s presidency, and has never been resolved.   But it can argued with considerable force both from the constitutional text and from historical precedents that the constitution explicitly gives the President sole authority over the enforcement or nonenforcement of laws (except perhaps at the ends of the spectrum described above).[3]  The President is granted broad law enforcement authority to enable him/her to check abuses by other government branches.  The need for enforcement discretion is especially clear where enforcement resources are scarce and enforcement priorities therefore must be set by the President, as is true in the case of immigration.  So, President Obama’s Order can reasonably be defended on constitutional grounds.  The contrary argument  is that the scale of the President’s action goes beyond the bounds of permissible discretion.  This too is a tenable claim–but what matters for practical purposes is whether Congress can successfully block the Order.[4]

There are a limited number of ways Congress can enforce its disagreement with the President over this Order and realistically, most won’t work.  They include a lawsuit; impeachment proceedings; and blocking legislation.  In many cases, Presidents’ uses of their authority can be reviewed by federal courts.  Here, however, the Supreme Court is unlikely to intervene, because President Obama’s use of power raises what is usually regarded as a political question, a type of issue courts refuse to decide.  His Order involves a longstanding policy disagreement with Congress.  Unlike President Truman’s decision in the Steel Seizure cases, the President is not proposing to seize large amounts of private property to enforce his policies.[5]  The courts will quite probably refuse to intervene.

As an alternative, if Congress objects to the president’s action, it can impeach him. Here let’s leave entirely aside whether the President’s action is an impeachable offense.  It’s more important that Republicans will very probably be unable to muster the two-thirds Senate vote needed to impeach President Obama on this issue, because this would require about one-third of Democratic senators to vote for impeachment even if all Republican Senators did so (which is not at all certain). Impeachment hearings might be educational, but impeachment won’t happen, and would be a waste of resources.

This leaves Congress with two other alternatives.  It can either adopt regular legislation to block this action, or try to force the President to change it by shutting down the government or restricting it through the appropriations process.  The regular legislative route is probably blocked by the Senate’s filibuster rule, which  requires 60 votes to adopt legislation.  It’s unlikely that enough Democratic senators will defect from the President’s position in view of the issue’s significance for the 2016 election.   And it’s extremely unlikely that Republicans will change the filibuster rule to lower the number of votes needed for cloture.  This rules out ordinary legislation.

Shutting down the government has generally been a disaster politically for Republicans.    It will be very hard to argue that any damage the Order may cause before Congress legislates would be irreparable.  For shutdown to succeed, a majority of the public would need to think that it was so important to prevent the Order from taking effect that they are willing to interrupt all government nonessential operations. This seems unlikely. Some members of Congress apparently think that they could avoid shutdown and still block the Order by refusing to appropriate funds for agencies that would implement it, but this approach is unlikely to withstand a veto, and faces the same political problems as shutdown.

President Obama has argued that his Executive Order is designed to force legislation. Getting reluctant Congresses to act is part of what we elect presidents to do.  If legislation passes while he is president, it will look very different than it would if Congress delayed action until a new president is elected.  Congress will have to decide whether it can afford to wait President Obama out, if it refuses to compromise with him.  That would be a huge gamble politically, because it would leave the issue open to affect the 2016 election.

Notes

[1] The Administration’s executive actions apparently are being implemented by the Department of Homeland Security, rather than through an Executive Order, but the basic constitutional analysis will turn on the view that the President is authorizing and directing all of these actions, so the use of the term “Order” will be convenient here. A Justice Department memorandum providing a detailed analysis of the proposed actions by the Department of Homeland Security may be found here: http://www.justice.gov/sites/default/files/olc/opinions/attachments/2014/11/20/2014-11-19-auth-prioritize-removal.pdf. This post does not address the substance or policy merits of the Order. Quotations are placed around the word “illegal” simply to show that some people dispute that characterization of the status of these individuals.  For this post’s purposes, that dispute is irrelevant.

[2] It is often thought that the phrase “Treason, Bribery, or other High Crimes and Misdemeanors” in the Constitution defining impeachable offenses (Art. II, Sec. 4) means that the President and other officials can only be impeached as a result of serious criminal misconduct.  In fact, the debate at the Constitutional Convention shows that the phrase “high crimes and misdemeanors” was added specifically to meet the objection of George Mason that an earlier more limited formulation would not permit impeachment for political offenses.  Max Farrand, Records of the Federal Convention of 1787 (4 vols., New Haven, 1966), 2: 550.

[3] This is the essence of Justice Scalia’s argument that the independent prosecutor statute was unconstitutional in his persuasive dissent in Morrison v. Olson, 487 U.S. 654 (1988).  Several of America’s leading presidents would have endorsed Scalia’s position.

[4] For a survey of opinions on the constitutional issue, see the New York Times, November 19, 2014 at  http://www.nytimes.com/roomfordebate/2014/11/18/constitutional-limits-of-presidential-action-on-immigration-12?smid=nytcore-ipad-share&smprod=nytcore-ipad . For a letter by Laurence Tribe, Eric Posner, and other constitutional scholars defending the constitutionality of the President’s actions see https://time.com/3598790/immigration-reform-executive-actions-barack-obama-deportations-law-scholars-washington/

[5] Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952).