Guest Post: Gabor Rona on Obama’s Executive Action on Immigration

[Gabor Rona is a Visiting Professor of Law and Director, Law and Armed Conflict Project at Cardozo Law School.]

Over at Lawfare Jack Goldsmith provides a somewhat more nuanced analysis of President Obama’s executive action on immigration than the inflammatory rhetoric flowing from some quarters, see here, here, and here. Jack nowhere uses the words “impeachment” (except to say that it appears to be off the table) or “emperor” in reference to the president. When Jack notes “President Obama’s transformation, in less than three weeks, from an irrelevant lame duck to an overbearing threat to our constitutional order,” I assume it’s a derisive reaction to both hyperbolic extremes. In fact he says that Obama’s move is likely constitutional, but possibly violates “sub-constitutional norms,” according to which congress and the president are supposed to work together to solve big, tough domestic issues.

Here’s why I think Jack’s comparatively mild criticism is still off base.

First, let’s acknowledge the important difference between thwarting the expressed will of congress and merely circumventing a dysfunctional congress. The studied tantrums of a few legislators should not be confused with congressional consensus. The constitution quite clearly provides the president with the power to dismiss congressional will – it’s called the veto power. (Of the last ten presidents, the five Republicans have hit the veto button twice as often as the five Democrats, says Wikipedia.) And since the founders thought it prudent to empower the president to tell congress to shove it, isn’t it a bit of an overreaction to even ask if the sky is falling because the president has used constitutional authority to fill a vacuum where congress has been absent?

Perhaps you’re thinking “What does he mean ‘congress has been absent?’” After all, the president is proposing to waive the application of existing law for certain classes of non-citizens. But if the president’s constitutional obligation to “take care that the laws be faithfully executed” means he must enforce every violation of every law congress passes, we’d all be in jail! (Check this out, just for fun).

The Heritage Guide to the Constitution says this about the “take care” clause:

To be sure, the extent of the faithful-execution duty is rather unclear. Plainly, the President need not enforce every law to its fullest extent. Common sense suggests that the President may enjoy some discretion in order to gauge the costs and benefits of investigation, apprehension, and prosecution.

There are at least a couple of reasons the institution of prosecutorial discretion is well established in U.S. jurisprudence. One is that the law can be a blunt instrument, so we’ve always accepted the role of human discretion in the delivery of justice. (Yes, that same prosecutorial discretion has been applied discriminatorily, but that’s a flaw that law has rightly attempted to deal with discretely, rather than through a baby-out-with-bathwater approach).

Secondly, I don’t recall a groundswell of angst about the “sub-constitutional” order when Presidents Reagan and Bush, and for that matter, every U.S. president in the last half century granted limited relief from enforcement of immigration law to one or more groups by executive action.

Finally, let’s turn the spotlight back on congress. A responsible legislative branch recognizes that laws don’t enforce themselves. Then why is there such a huge gap between the inventory of laws and the infrastructure/resources required to enforce them? Perhaps because lawmakers expect the exercise of executive discretion. And perhaps because a lot of lawmaking is really about posturing rather than governing. (My favorite example is the Office of Foreign Assets Control’s enforcement of the Trading with the Enemy Act/Cuba travel embargo, for which alleged violators are entitled to a hearing, except that no one bothered to create a mechanism for hearings. Ask for a hearing and the case is dismissed. Have you seen the outrage at this hypocrisy? Neither have I.) So if congress is serious about deporting every illegal alien, then let it find and appropriate funds for that gargantuan task, as well as for jailing or fining every druggie, fraudster, tax cheat and every trader with the enemy in Havana. Only then should we hear complaints about how congressional will is being thwarted. Until then, the executive not only may, but must find principled ways of deciding what laws to enforce, and against whom.

There’s another element of the drama that Jack fails to address: we’re already in something of a constitutional crisis and it is of congress’s making. Never before had I heard leaders of the opposition party admit that their strategy is to make it impossible for the president to govern. And they’ve been pretty effective at it, albeit due in part to the present White House occupant’s acquiescence. That’s not merely “subverting the sub-constitutional order,” it’s more like a middle finger to the constitution and the national interest, however defined. In isolation, the president’s unilateral action on immigration could be seen as impolite and impolitic. But can we really say that these are not times that try America’s soul?

So what course of executive action is more harmful to the constitution and the republic? That which is legal but impolite and perhaps sets an uncomfortable “sub-constitutional” precedent? Or doing nothing while congress allows Rome to burn for political profit?