Last week, President Obama issued new guidelines allowing immigrants who illegally entered the United States as children to remain here so long as they are under the age of 30, have not been convicted of any crimes, and have either graduated from a US high school, are currently enrolled in school, or have served in the military. Obama lacks the legal authority to legalize their presence in the US; but he has in effect assured these people that they will not be prosecuted or deported for so long as his new policy remains in place.
This reform strikes me as a major step in the right direction. It allows some 800,000 people to live their lives in peace without the fear of being deported to a life of poverty and oppression in the Third World. It strikes a blow against the grave injustice of current immigration restrictions. All the standard objections to illegal immigration don’t apply here. For example, critics cannot argue that we are letting guilty people off the hook here, since these individuals came to the US as children and were not legally responsible for their actions at the time. Similarly, it is unlikely that these people will become burdens on the welfare state, given their educational credentials. In any event, increased immigration tends to reduce political support for welfare spending rather than raise it.
I do disagree with claims that this decision by Obama is especially bold or politically brave. Polls show that 84% of Americans – including even 79% of Republicans – believe that illegal immigrants who were brought to the United States as children and are either enrolled in college or serving in the military should be allowed to remain (49% believe they should be granted citizenship). Obama’s policy differs from the one described in the poll, but only modestly. The small minority who oppose this move are unlikely to vote for Obama anyway. But regardless of his motives, Obama made the right decision. This policy ranks high on the list of issues where Obama and I agree.
This criticism runs afoul of the reality that the federal government already chooses not to enforce its laws against the vast majority of those who violate them. Current federal criminal law is so expansive that the majority of Americans are probably federal criminals. That includes whole categories of people who get away with violating federal law because the president and the Justice Department believe that going after them isn’t worth the effort, and possibly morally dubious. For example, the feds almost never go after the hundreds of thousands of college students who are guilty of using illegal drugs in their dorms. The last three presidents of the United States all have reason to be grateful for this restraint.
Yoo contends that there is a difference between using “prosecutorial discretion” to “choose priorities and prosecute cases that are the most important” and “refusing to enforce laws because of disagreements over policy.” I don’t think the distinction holds water. Policy considerations are inevitably among the criteria by which presidents and prosecutors “choose priorities” and decide which cases are “the most important.” One reason why the federal government has not launched a crackdown on illegal drug use in college dorms is precisely because they think it would be bad policy, and probably unjust to boot. That, of course, is very similar to Obama’s decision here.
Finally, Yoo also argues that prosecutorial discretion does not allow the president to refuse to enforce an “entire law,” as opposed to merely doing so in specific cases. But Obama has not in fact refused to enforce the entire relevant law requiring deportation of illegal immigrants. He has simply chosen to do so with respect to people who fit certain specified criteria that the vast majority of illegal immigrants do not meet. Even if the president did choose to forego enforcement of an entire law, it’s not clear to me that that is outside the scope of prosecutorial discretion. A president who uses his discretion to “choose priorities” could reasonably conclude that enforcement of federal laws A, B, and C is so much more valuable than enforcement of D that no resources should be devoted to the latter if they could possibly be used for the former.
UPDATE: A more recent poll shows that 64% of likely voters support the president’s policy.
UPDATE #2: At the Originalism blog, Michael Ramsey comments on this post as follows:
These are all fair points, though I’m left with two questions:
(1) Where would Professor Somin draw the line between permissible non-enforcement and violation of the take care clause? Could the President, if unable to persuade Congress to enact a middle-class tax cut, announce that henceforth people making below a specified income level will not be punished for failing to pay taxes? I’d be surprised if many people think he could do that, but I’m having some trouble seeing how the present policy is different.
(2) Is it true that all of the President’s policy can be explained simply as a decision not to enforce the law? Professor Somin assumes so, but my limited understanding was that the policy conveys affirmative benefits.
On Ramsey’s first question, I would say that the president could indeed choose not to prosecute people making below a specified income for tax evasion. I think that is an inevitable result of a system of separation of powers where prosecutorial discretion is lodged in an executive separate from the legislature. The constraint on this kind of abuse of power is primarily political. A president who takes discretion too far risks a backlash by Congress and the public. Notice that the same scenario could arise from the use of the president’s pardon power. The president could announce that he will pardon anyone who is convicted of tax evasion if their annual income is below a certain level. No one doubts that the Constitution gives him such authority, and that the relevant constraint on it is mostly political. In reality, president’s are unlikely to massively abuse prosecutorial discretion for much the same reason as they are unlikely to pardon anyone who violates a federal law they disagree with.
Regarding the second question, I am not aware of any “affirmative benefits” attached to Obama’s decision, other than those that are inevitably attached to being able to remain in the US. If there are such benefits, they may indeed raise legal issues that go beyond the issue of prosecutorial discretion.
UPDATE #3: Ramsey responds further in an update to his post:
Wow, so the President can lower everyone’s tax rates by executive order? Why then did President Bush work so hard in 2001 to encourage Congress to enact the “Bush tax cuts” when he could have just announced that anyone who paid at the rate he specified wouldn’t be prosecuted? Relatedly, does that mean the President can in effect adopt a (temporary) flat tax by saying that anyone who pays, say, 10% of income in taxes doesn’t need to worry about enforcement?
More seriously, it seems to me that we face here two conflicting constitutional rules: the President’s Article II, Section 3, obligation to take care that the laws are faithfully executed and the President’s Article II, Section 1, executive power to decide how to enforce the law. The challenge is to explain how they interact. Professor Somin’s response seems instead simply to ignore one of them. In posing my hypothetical, I was trying to draw out his explanation of the take care clause. But perhaps he thinks that the President does not have an obligation to enforce the laws. I’m not sure how that could be reconciled with the Constitution’s text, but I’m also not sure what other conclusion to draw from his response.
On Ramsey’s first point, I would say that the reason why Bush worked to get Congress to pass his tax cuts is that, otherwise, any executive decision not to prosecute people could be overruled by the next president. Taxpayers would have no guarantee that the new Bush rates would not be suddenly changed by the president. Also, such a decision would have resulted in severe political damage to his administration. One can just as readily ask why Bush didn’t announce that he would pardon anyone convicted of failing to pay taxes above the rate Bush considered appropriate.
As for the Take Care Clause, I don’t think it requires the president to enforce every law to the hilt. If it did, every single president in our history would have been in violation. In my view, what the Clause means is that the president (as opposed to Congress or the courts) is the official tasked with enforcing the laws and that he must make a good faith effort to decide on the best law enforcement strategy he can, given all relevant circumstances. That is not a perfect interpretation, but I think it’s preferable to the available alternatives.