The Legal Case For Obama’s Executive Action on Immigration

Greg Sargent and others have made a solid layman’s case for the president’s executive action on immigration being not only constitutionally acceptable and legally sanctioned, but actually necessary to avoid excessive prosecutorial discretion. Legal authorities have for the most part been just as emphatic in defending Obama’s prerogatives over a very screwed up immigration system that Congress has refused to address.

Today at Ten Miles Square, we’re pleased to offer a web-exclusive take from a distinguished constitutional lawyer, Ohio State University Professor Peter Shane, author of Madison’s Nightmare, a 2009 book warning of the constitutional dangers of recently expanded executive powers.

Shane argues it is the status quo ante prior to Obama’s executive action that threatens legal chaos and the exercise of arbitrary executive power:

[Obama] confronts three realities on immigration policy. The first is that Congress has not funded – and cannot plausibly finance – a system of immigration enforcement adequate to its caseload. The Pew Research Center estimates that the number of undocumented immigrants in the U.S. was 11.3 million in 2013.

The Obama Administration deported a record 400,000 persons in 2012. If the government continued at that pace, deporting the current population of undocumented persons would take more than 28 years. Even that massive effort would clear the decks, so to speak, only if no undocumented persons were to cross our borders between now and the year 2042.

The second reality is that, without well-articulated criteria to guide the exercise of discretion by the Departments of Homeland Security and Justice, the practice of deportation is likely to be rife with arbitrary decision making and resistant to public oversight. The most elementary principle of justice is that like cases should be treated alike. The alternative to priority-setting standards to guide the handling of 11.3 million potential cases is going to be arbitrary decision making of Kafka-esque proportions. Many of the millions of families caught in the nightmare will – except for the circumstances of their entry into the U.S. – be law-abiding, productive, exemplary people.

The third is that, despite majority support in Congress for a comprehensive legislative fix to our broken immigration system, Congress will not send him a bill to sign.

Shane goes on to distinguish this situation from that where presidents (including, arguably, Obama himself) have exceeded statutory and perhaps constitutional boundaries in the name of enforcing the law. Until such time as Congress acts to deal with the vast gap between the population of the undocumented and the resources necessary to enforce the law, Obama was duty-bound to issue some definitive (if temporary) guildelines, and in so doing, he did not degrade, but rather enhanced, the rule of law in immigration.

Read Shane’s piece and take some notes for the next time you encounter shrieking or simply confusion over the legal issues surrounding Obama’s action.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.