Executive Nullification Not Part of the Constitution

President Obama’s immigration orders are perfectly constitutional – just ask him. Better yet, ask Saturday Night Live, whose skewering highlighted President Obama’s condescending attitude toward the now old-fashioned idea that the president needs Congress to change the law. “That’s adorable, you still think that’s how government works,” says Obama’s executive order.

In an unusual move, President Obama released a legal memo justifying his actions the same day that he announced them. Though drafted as legal justification by the Office of Legal Counsel — a Department of Justice (DOJ) office with alumns including Justice Antonin Scalia and the late Chief Justice William Rehnquist — the memo may also contain the seeds of the action’s demise.

President Obama is taking two actions. First, he directed the Department of Homeland Security to prioritize deportations. Those here illegally who have committed crimes or threaten national security are deported first. Those convicted of multiple or significant misdemeanors are second-tier deportation priorities. Finally, the third — and lowest — priority category include those issued a final removal order after January 1, 2014 — unless they “qualify for asylum or another form of relief under our laws.”

So far, so good — so far as the Constitution is concerned. The DOJ memo explains when an executive agency is charged by law with implementing a statute, the agency has broad “discretion to decide whether a particular violation of the law warrants prosecution.” But, even the DOJ acknowledges executive discretion has its limits.

For example, “the Executive cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences.” Nor may it “consciously and expressly adopt a general policy” so sweeping as to “amount to an abdication of its statutory responsibilities.”

Finally, prosecutorial discretion is most appropriate when used on a case-by-case basis. General policies, by contrast, pose special risks — that the executive has exceeded his constitutional bounds.

Here’s where Obama’s plan turns unconstitutional. Part II creates a new legal status for more than four million illegal immigrants. For those who are not in a priority deportation category, President Obama will create a deferred action program that the White House describes as “a legal way to earn citizenship.” If they pass background checks, pay taxes and a penalty, and learn English, they can eventually earn their citizenship.

President Obama’s executive action leaves a fig-leaf of discretion to immigration officials. For example, an illegal immigrant who otherwise qualifies for the path to citizenship may still be denied if the official finds some factor that would “in the exercise of discretion” render the path inappropriate. The Department of Homeland Security (DHS) memo, however, fails to identify any example of such a factor. The Department of Justice memo relies on this “discretion” to argue that Obama’s plan “does not create a categorical entitlement to deferred action.”

President Obama’s rhetoric suggests otherwise — so does common sense. Nobody is more sophisticated about immigration law than those in the shadow of the law. If this were no big deal — hey, you can exercise your discretion liberally order — immigration advocates wouldn’t be partying like its 1999.

How often will Homeland Security agents actually exercise any deportation discretion for illegal immigrants who are not in the high-priority deportation categories? How often will they reject an application for the path to citizenship?

There is little doubt under the authorities cited by the DOJ memo that a court would strike an across-the-board rule as a violation of the Constitution's “Take Care” Clause. But what happens if the discretion exists in theory but is never or rarely exercised in reality? When does a guideline become a rule?

As a matter of policy, there’s a good case to be made for a path to citizenship as part of a comprehensive immigration reform bill. There’s no functional way to find and deport everyone who is here illegally. Just as important, a path to legalization provides both the benefits and the responsibilities of citizenship — paying taxes.

Regardless of your immigration politics, all Americans should be alarmed by the precedent of Obama's action. Our Constitution grants the president many powers, but executive nullification is not one of them. If we are to remain a nation governed by the rule of law, no single policy win can justify running roughshod over the Constitution.

Like Obamacare, the states will probably wage this legal battle — but the cases will take time to develop. Legal standing requires injury. Before filing suit, a state must incur increased costs associated with the order.

These challenges will take years to wind through the courts. By the time of a decision, further intrusions may occur. If the president can take this action on immigration law, why not environmental or tax laws? Liberals may eventually rue the day Obama decided to take the law into his own hands.