The president’s statement on November 20, 2014 contained several outright falsehoods. More significantly, masked behind the discussion over prosecutorial discretion is a flagrant violation of the Constitution’s core separation of powers principle that Congress, not the president, makes the law.
First the lies, damn lies, and statistics. President Obama said that deportations are up over 80 percent. Truth be told, his administration has manipulated the definition of “deportation” in order to make that claim. Those caught and turned away at the border are now included in the total, whereas before they were not. Comparing apples to apples, the Los Angeles Times reported last April that deportations are down by more than 40 percent since Obama first took office, and the New York Times reported that there was a 26 percent drop in deportations in fiscal year 2013 alone.
Presidents routinely exercise prosecutorial discretion in individual cases because they seldom have the resources to enforce every minor violation of the law. But rarely has a President engaged in such a wholesale, categorical non-enforcement of the law as Obama did two years ago with the so-called Deferred Action for Childhood Arrivals (“DACA”) program (which was available to anyone up to the age of 35!), and now the massively expanded program announced on November 20.
The president’s largest whopper was this: “Now, let’s be clear about what [the new program] isn’t. . . . It does not grant citizenship, or the right to stay here permanently, or offer the same benefits that citizens receive—only Congress can do that. All we’re saying is we’re not going to deport you.”
Not true by a long shot. Non-deportation alone would be an exercise of prosecutorial discretion, even if wholesale, categorical non-enforcement pushes the limits of that doctrine beyond the breaking point. But Obama’s new directive (which was not even issued as an executive order, but merely a “memo” from the Secretary of Homeland Security) would give lawful status to the millions of people who are beneficiaries of the new policy, and afford to them work authorization and other benefits that are specifically prohibited by U.S. law.
As the U.S. Customs and Immigration Service announced with respect to the predecessor DACA program, “An individual who has received deferred action is authorized by DHS to be present in the United States, and is therefore considered by DHS to be lawfully present during the period of deferred action is in effect.” That’s why hundreds of thousands of DACA applicants were deemed to have “legal status,” obtain work authorization, and also obtain driver’s licenses (which were then used to open the door to a host of other benefits available only to citizens and those with lawful permanent residence). The new program will expand that number to millions, perhaps tens of millions.
Obama was right about one thing: “Only Congress can do that.” Indeed, there are few areas of constitutional authority that are more clearly vested in the Congress than determinations of immigration and naturalization policy. The Supreme Court has routinely described Congress’s power in this area as “plenary,” that is, an unqualified and absolute power.
But Obama went ahead and did it anyway. Contradicting even his own express statements over the past four years that he did not have the constitutional authority to do this.
Congress is not without constitutional checks on a president who abuses the powers of his office. It has the power of the purse, and it can use that power to prohibit the expenditure of funds for carrying out the president’s dictate to extend work authorization to those not lawfully authorized to work.
And there may be litigation strategies that can be employed, as well. For example, lawfully authorized workers displaced by those to whom Obama has unlawfully extended work authorization have the kind of particularized injury that would give them legal standing to challenge the new policy. Workers compensation insurance carriers, too, might be able to challenge the policy, which forces them to extend coverage to those not legally able to work.
Whatever path is pursued, it is critical that this constitutional crisis not go unanswered; the rule of law itself is at stake.
Eastman is the Henry Salvatori Professor of Law & Community Service at Chapman University’s Fowler School of Law, the director of the Claremont Institute’s Center for Constitutional Jurisprudence, and the chairman of the Federalist Society’s Federalism & Separation of Powers Practice Group.