Friday, November 28, 2014

Richard Epstein from the US: Obama's Amnesty Problem


On Thursday November 20, President Obama delivered a controversial address to the nation on the contentious subject of immigration. In it, he outlined his plan to grant amnesty to some 3.5 million illegal immigrants in the United States. 

Recent polling data suggests that the President is sailing in choppy waters. The opposition stems in part from concern about the abuse of presidential prerogatives and in part from the unpopularity of his pro-immigration policies. Democrats have remained relatively silent on the matter. Republicans, meanwhile, have decried his unilateral executive action, which bypasses Congress, and are now considering the political and legal options to either block or slow down the President’s initiative.

The stars are aligned for a major shake-up of immigration policy. Without question, the pressures on immigration policy are intensified by the forces that shape the global economy.

As a nation we face the unenviable situation of trying to keep out illegal aliens on the one hand, and trying to give some measure of stability and protection to the immigrants, many of whom are here illegally, on whom the operation of the economy depends. 

I wish I knew how to best resolve these issues, but like most people I am torn by two conflicting impulses. On the one hand, I am generally supportive of policies that allow people to come to America to start a better life for themselves and their families. On the other, I am afraid that immigration, if left unchecked, could generate massive burdens that could overwhelm our already fragile social and political structure. 

The President reflected this conflict in sentiments by stressing how hard he was working to keep new immigrants from entering illegally, while simultaneously hoping that amnesty would make life better for the illegal immigrants already in the United States, many of whom are parents of citizens of the United States. But it will be hard to apply sticks to would-be illegal immigrants outside the United States while offering carrots for those inside.

The tensions so apparent on the policy front are matched by the difficulties in deciding whether the President has exceeded the constitutional powers of his office, on which there is a hopeless division of opinion. The relevant text of the Constitution is the “take care” Clause of Article II, Section 3, which states: The President “shall take care that the Laws be faithfully executed.” 

The hard task is figuring out what that short sentence means in the context of an ever expanding administrative state, which has the potential to make a mess of immigration policy. It is easy to say that the President acts in conformity with the law when he or his subordinates enforce the law as written in all cases to which it applies. But at a minimum, executive branch officials have to make hard choices to decide whether the benefits of amnesty outweigh the costs, especially in light of other options that are foreclosed. No level of Congressional oversight can answer that question, which for better or worse necessarily resides with the President. 

In this context, the word “faithfully” takes on two contradictory meanings. In the first sense, to be faithful to law is to follow its commands no matter what. But alternatively, like any prudent corporate CEO, the President also has to know when to back off, which means that some major use of discretion is an inseparable feature of holding the office. Some commands are literally impossible to implement within a congressional time frame, so that delay or partial enforcement are the only available alternatives. At other times, national emergencies require a reordering of priorities. Congress sometimes makes the President’s life easier by allowing him to waive particular deadlines or requirements, a power all too easily abused. Running a national economy is not quite like stopping at red lights and going on green ones.

So just how far can the President deviate from the letter of the law? One answer to that question is found in the detailed and carefully crafted legal memorandum from Karl R. Thompson in the Office of Legal Counsel which blessed key components of the President’s “deferred action program” that would expand amnesty for at least 3.5 million illegal immigrants, plus about 235,000 persons eligible on the Deferred Action for Childhood Arrival Program. 

A policy of amnesty goes far beyond a simple decision to not prosecute illegals, which the President could have made in piecemeal fashion, without making any grand declaration. But his amnesty makes the designated illegal immigrants eligible to receive work permits, Social Security numbers, and driver’s licenses, at least on a temporary basis. Thompson carefully points point out that the presidential decisions do not put these immigrants on the path to citizenship, as amnesty need not be extended and could be canceled at any time. But the politics plays out the other way. Once expectations become settled, undoing a decision of this magnitude would surely disrupt the lives of millions of people who have paid little attention to the fine print. 

So just how good a case has Thompson made? As an advocate, he has done a first-class job of marshaling the available precedents in support of his position. But unfortunately, he overstates the scope of presidential power. As Thompson repeatedly notes, the limited resources of the ill-named Immigration and Customs Enforcement (ICE) allow for the removal annually of just 400,000 thousand of the 11.3 million illegal aliens estimated to be in the United States. Hence hard choices have to be made on where to spend ICE’s limited budgetary resources. 

But Republican howls of protest against the President’s unilateral decision would have been reduced to whimpers if the President had simply announced that he would use those resources to chase after hardened criminals first, minor criminals next, and other cases third. Obviously the President’s unilateral decision has gone far beyond those modest contours. Yet the Thompson memo never explains why the resources now available to ICE are exhausted by pursuing persons in the first two categories. Putting serious cases first does not justify wholesale disregard of lesser forms of illegality that everyone agrees are clearly subject to a statutory duty.

Unfortunately, the President can take little comfort from either of the two standard justifications for presidential discretion. His wholesale amnesty is not required by novel or unanticipated circumstances: this problem has been brewing for years. Nor can the President claim that it is “impossible” to discharge the statute. All he needs to do is continue on the same course he has taken throughout his term. Keep the priorities set, but deport illegal immigrants in the third category to the extent that resources permit. A wholesale amnesty goes rather far in the opposite direction, especially when coupled with the first steps toward the incorporation of illegal aliens into the American population. 

Nor does it help that President Obama has on previous occasions expressed his frustration to cut a deal with Congress to revise immigration policy. To my knowledge, no president has ever put forward his inability to persuade the Congress to adopt his position as a reason to act alone, especially when the system of checks and balances is intended to limit the scope of unilateral presidential action.

The cases in the Thompson memo contain language that recognizes the need for presidential discretion in the application of the law, but none of them deal with anything like the present situation. Thompson leads off with the difficult case of Heckler v. Cheney, which stands for the general proposition that the courts do not have the power to require the President to take enforcement action in any particular set of cases. But Heckler dealt with the refusal of the Food and Drug Administration to intervene on behalf of convicted prisoners facing death sentences who demanded that the FDA block the use of unapproved lethal drugs to achieve their executions. It is hard to see how the general FDA mandates to insure the safety and effectiveness of prescription drugs relate to this case. And further more, no one is asking the President to do anything at all. 

Similarly, little comfort can be obtained from United States v. Armstrong, in which the defendant in a crack cocaine case was denied discovery on the claim that he had been “singled out” for prosecution on the grounds of race. The case only deals with the usual vicissitudes of litigation; it did not deal with a categorical refusal to prosecute in any and all crack cocaine cases. 

Closer to the mark is a case like Knauff v. Shaughnessy, which held that the Attorney General did not have to give a hearing to the alien wife of an American citizen who had served honorably during World War II before deciding to exclude her from the country. The case shows the few individual rights that aliens have against the United States. But the case did not involve any conflict between the President and the Congress because the government’s action had full statutory authorization. There was, quite simply, no conflict between the executive and legislative branch.

In terms of overall scale, perhaps the most dramatic case is the 2012 decision in Arizona v. United States, which struck down key provisions of an Arizona law intended to discourage the economic activities of illegal immigrants within the state. But here again, the case presented no conflict between the president and the Congress, so that the sole question in the case was whether Congressional legislation preempted state activity within the field. The case was not a fight about how far the president can go against the will of Congress.

As a general matter, I think that the precedents do not support the President’s position, but on this issue, the courts may be willing to give the President more leeway in light of his key position in overseeing the entire immigration complex. But for the moment at least it is not certain who has standing to challenge the decision in court. The short game lies with Congress, and the situation will change dramatically come 2015 when the Republicans take over both houses of Congress, at which point the President will have to rely on his veto power to keep the program in place. How the two sides will tangle politically is hard to predict in advance.


In the final analysis, the President will get a lot of credit for taking the lead on an issue with a strong humanitarian dimension. But he deserves a lot of blame for moving unilaterally to alter the uncertain boundary between executive and legislative action. Anyone who has worked with constitutional law knows that the Constitution solves only the first tier of key questions, leaving the remainder to be worked out by inter-branch custom and common practice. Institutional stability is key. But now that the President has pulled these institutional threads asunder, who in the current political environment can put them back into place?

Richard A. Epstein, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, is the Laurence A. Tisch Professor of Law, New York University Law School, and a senior lecturer at the University of Chicago.

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