The Obama administration just made a publicity stunt out of a minor executive procedure and Republicans erupted in furors—mostly of fallacy and misinformation. When the dust settled, Republicans sat space-eyed, holding their boxer shorts, while Obama walked off with their rear-ends in his brief case.
In that case also were copies of the Constitution and the Immigration and Nationality Act—things the Republicans apparently did not bother to consult.
My point here will be this: Republicans and conservatives have just received a tough lesson on our beloved Constitution. The only question is whether we will learn from it or not.
After the President announced his “deferred action” plan for certain immigrants, certain Republican leaders like Ted Cruz and John Cornyn denounce his actions as “unconstitutional,” “illegal,” “abuse of power,” and “rule by dictate and decree,” among other things.
I believe this is nonsense, and I’ll tell you why in a minute. But the biggest proof of my position is this: If these guys were anywhere close to right about the illegality, they would shut up and file a lawsuit. It’s that simple. But they haven’t, and they won’t. And they know why. And now you will, too.
Whatever our opinions on immigration itself may be, all of these arguments about illegality and unconstitutionality are absolute nonsense. And this is not my opinion: it is the opinion of those who debated during the constitutional era. It is also the opinion of both liberal and top conservative constitutional scholars today.
It is easy enough to get clarity from the liberals. You may not like the sources, but the legal explanations are some of the clearest, simplest, and most accurate available. Slate author Walter Dellinger provides clear reasoning as to why the President is 1) not acting unilaterally, 2) not acting illegally, 3) is not even doing anything very remarkable from a legal viewpoint, and 4) not acting unconstitutionally.
The synopsis is simple: First, the act is not unilateral because it is acting according to laws already made by Congress, and which the Constitutional says he must enforce. He is acting not contrary to, but under the authority of, other branches.
Second, he is not acting illegally because of the already-written law that he must enforce. The immigration laws currently charge the president with “Establishing national immigration enforcement policies and priorities.” Obama is acting within the law by establishing those very policies and priorities. More on this part in a minute.
Third, it should be easy to see from points 1) and 2) why this action is hardly remarkable. According to former legal counsel to George Bush, Sr., the action is actually “routine.”
Finally, therefore, the action is obviously not unconstitutional since he is doing exactly what the Constitutional calls any president to do: “take Care that the Laws be faithfully executed.”
Another liberal gives an even more systematic view here.
But it is not just liberals and perhaps one squishy conservative who make these arguments. It is the more substantial right also. Again, this is not my opinion. It is the opinion of a broad swath of people who are informed on how law works, what the Constitution actually says and means, and how it has been applied and judged historically.
For example, a panel of law scholars at the conservative Federalist Society recently arrived at the same conclusion—even if reluctantly. The Federalist Society was created three decades ago by Reaganites specifically to challenge liberal interpretations of the Constitution. It boasts a membership now of over 40,000 lawyers, professors, and law students. As far as mainstream conservative legal scholarship goes, this is the big leagues.
Their panel was not tangential. It was directed at the very question and the very part of the Constitution that is at question. The panel discussion was titled, “The President’s Duty to Take Care that the Law Be Faithfully Executed.”
And what did they conclude? With one outspoken exception, they concluded that this move from Obama is constitutional, but even the one dissenter agreed that the Executive has, in general, the power of discretion in regard to interpretation and enforcement of laws. The conclusion is that sometimes (often!) laws are written that leave certain “discretionary” details up to the executive branch to design and enforce. Duke Law professor Christopher Schroeder summed it up: “I agree this can make us very uncomfortable. I just don’t see the argument for unconstitutionality at this juncture.” The panel gives much discussion, teaching, and some examples behind this consensus. Watch the entire 1-plus hours of video for yourself.
Schroeder argued the case:
There is a difference between executing the law and making the law. But in the world in which we operate, that distinction is a lot more problematic than you would think. If the Congress has enacted a statute that grants discretionary authority for the administrative agency or the president to fill in the gaps, to write the regulations that actually make the statute operative, those regulations to all intents and purposes make the law.
From the framers’ angle, the president’s discretionary authority has been noted from day one. I make the point in the chapter on executive power in Restoring America:
Another antifederalist warned about what has turned out to be a real danger of the President: his actual job description for executing the law. This appears in Article 2, Section 3 of the Constitution and is left extremely broad (not an uncommon feature in our Constitution): “he shall stake Care that the Laws be faithfully executed.” In a letter to Captain Peter Osgood Massachusetts, William Symmes described the problem:
Can we exactly say how far a faithful execution of the laws may extend? or what may be called or comprehended in a faithful execution? If the President be guilty of a misdemeanor, will he not take care to have this excuse? And should it turn against him, may he not plead a mistake! or is he bound to understand the laws, or their operation? Should a Federal law happen to be as generally expressed as the President’s authority; must he not interpret the Act! For in many cases he must execute the laws independent of any judicial decision. And should the legislature direct the mode of executing the laws, or any particular law, is he obliged to comply, if he does not think it will amount to a faithful execution?
In other words, the Constitution defines the President’s power so broadly that he can essentially create new laws by interpreting undefined areas of existing law according to his own agenda, interpreting how to implement existing laws, or he can perhaps even ignore specific laws of Congress if he deems them to infringe upon the broad interpretations he comes up with. In this way, the President has great latitude under the guise of his “care” to faithfully execute the laws.
And woe is us when our Congress actually passes a law so vague as to hand such discretion to the president. With these things in mind, read that statute for yourself once again: the President’s secretary of DHS, and thus under the duty of the president, is charged with the duty of:
“Establishing national immigration enforcement policies and priorities.”
Did Congress provide any detail in this statute? Are these “policies” defined, delimited? Are the “priorities” outlined? Is the president even given guidelines for these things? No. These are broad, undefined, discretionary powers handed by Congress directly to the president. And this was a law passed by an overwhelmingly bipartisan Congress.
So when the President turns and actually follows that statute, he may be acting contrary to the desires of some on the subject of immigration itself, but he is doing nothing illegal or unconstitutional.
So when the first and most vigorous action of conservative leaders is to hit the airwaves with cries of “unconstitutional” and “illegal,” I shake my head. This is the worst kind of political posturing imaginable: it is uninformed and misguided. They are not exposing his fallacy, but their own. And I have a hunch they know better.
I can’t imagine what they think they’re accomplishing. Perhaps it’s an unconscionable, shameless exercise in fundraising—unconscionable, that is, if these Republicans know they’re on the losing side for perfectly good reasons. They know that Supreme Court decisions, statutory authority, and the Constitution itself are all against their argument. Yet they hit popular conservative media outlets with shouts of “unconstitutional!” and stir up their base anyway. For what end?
There’s no need to speculate too much on motive. Assuming the motives are absolutely pure, then the reason must be ignorance and misinformation. Perhaps they don’t know that Supreme Court opinions, statutory authority, and the Constitution itself are all on the President’s side in this matter. If that’s the case, then these guys may be exonerated generally on the moral front, but it speaks loudly of incompetence. Either way, these guys are demonstrating nothing but their own weaknesses.
As I have said a hundred times now, if we want to make real lasting change in this society, we have to get honest about the real problems, and the real nature of the real problems. That may make us uncomfortable in some ways, but it has to be done. Skewed hype will only profit a few politicians for a short time, and only at their individual level.