US citizens Esmeralda Tepetate, 10, with her brother Sebastian, 2, whose parents are originally from Mexico, holds a sign that says "stop separating families" during a rally for comprehensive immigration reform, Friday, Nov. 7, 2014, outside of the White House in Washington. (Jacquelyn Martin/AP)
US citizens Esmeralda Tepetate, 10, with her brother Sebastian, 2, whose parents are originally from Mexico, holds a sign that says “stop separating families” during a rally for comprehensive immigration reform, Friday, Nov. 7, 2014, outside of the White House in Washington. (Jacquelyn Martin/AP)

Earlier today, the Supreme Court decided to hear a case filed by Texas and numerous other states challenging the legality of the Obama administration’s policy deferring deportation for millions of immigrants illegally present in the United States. The administration’s Deferred Action for Parents of Americans and Lawful Permanent Residents policy had previously been invalidated in a 2-1 decision by the US of Court of Appeals for the Fifth Circuit. In addition to addressing an extremely important area of immigration policy, the case also raises broader questions about the scope of presidential discretion over law enforcement. While the lower court decision largely focuses on whether the Obama administration violated the Administrative Procedure Act, the APA issue is in turn significantly dependent on whether the president has a general executive power to make rules about which immigrants to deport, or whether engaging in systematic determinations of this sort is equivalent to a new legal rule that requires going through the processes the APA sets out for the establishment of new administrative regulations that change the law.

I. The Significance of Today’s Decision.

At this time, it is hard to say whether the Court’s decision to take the case is a good sign for the administration, or for its opponents. As a general rule, however, the Court is more likely to take a case if they intend to reverse the lower court decision, which in this case went against the administration. Moreover, the Obama administration sought to have the case heard now, while at least some opponents would have preferred for the Court to wait it until after the November election. The Obama administration, obviously, prefers that the case be litigated while it is still in power, rather than leaving things up to a successor administration that could potentially be headed by a Republican opponent of DAPA. The timing of the Court’s action therefore seems to favor the administration. On the other hand, it is notable that the Court’s ruling accepting the case specifically asked the parties to address an issue raised by the states that had not been part of the lower court decision: whether the president violated the Take Care Clause of the Constitution, which states that the president must “take Care that the Laws be faithfully executed” (I explained why this argument is weak here and here).

II. Why the Obama Administration Deserves to Prevail.

I have previously outlined my views on the case in some detail here and here. To briefly summarize, Obama’s policy is constitutional, and well with the scope of presidential discretion over law enforcement. In a world where the scope of federal law is so great that the vast majority of Americans (and immigrants) have violated it at one point or another, the president unavoidably exercises broad discretion over which of the almost endless violations of federal law he wants to go after. If, as almost all experts agree, low-level executive officials can exercise such discretion on a “case by case” basis, then the president can exercise that very same discretion in a more systematic way by imposing general rules on his subordinates, such as the ones outlined in Obama’s DAPA policy.

In addition to practical considerations, this approach to executive power is also supported by the theory of the “unitary executive,” which has long been advocated by many conservatives. Unitary executive theory holds that, under Article II the Constitution, all executive branch officials and agencies must ultimately be under the control of the president. Given the vast scope of modern federal law enforcement, often the only effective way for the president to exercise control over enforcement discretion is to issue general mandates that constrain his subordinates and require them to follow his policy priorities. That is exactly what President Obama has done here.

While the scale of President Obama’s immigration policy is large relative to previous exercises of executive discretion over immigration policy, it is far from the only area where the executive branch has chosen to systematically ignore a substantial subset of lawbreakers. To take just one example, federal prosecutors virtually never prosecute marijuana possession by students on college campuses, even though it clearly violates the federal Controlled Substances Act. The number of people — including the last three presidents of the United States — who have gotten away with violating federal law in this way greatly exceeds the number exempted from deportation by DAPA.

Whether the issue is marijuana or immigration, presidents are entitled to use moral and policy considerations in determining which lawbreakers to pursue and which ones to ignore. One of the reasons why the feds almost never prosecute college students for marijuana possession is surely the perception that this is not an issue worth blighting the students’ lives. Similarly, few lawbreakers have stronger moral justifications for their actions than immigrants seeking to escape lives of poverty and oppression in the Third World. That point also applies to immigrants who seek to avoid being separated from their families – among the principle beneficiaries of DAPA.

Such sweeping executive discretion is troubling in many ways. Among other things, it creates obvious opportunities for selective prosecution. But the way to address this problem is to cut back on the scope of federal law, and limit its reach to issues where there is a broad consensus that the law in question should be aggressively enforced and the president has sufficient resources to target a high percentage of violators. We will not solve it by means of court decisions that invalidate systematic, transparent exercises of presidential authority like this, and thereby simply shift executive discretion to the more shadowy realm of behind-the-scenes “case by case” determinations.

The Obama administration has breached constitutional and statutory limits on executive power in far too many instances, most notably in waging two wars without congressional authorization. But this case isn’t one of them. Hopefully the Supreme Court will rule accordingly.

NOTE: I clerked for Judge Jerry E. Smith, the author of the Fifth Circuit lower court decision, back in 2001-2002. This case is one of the relatively rare major issues on which we disagree. Obviously, the case was decided long after my clerkship ended and I was not involved in the Fifth Circuit panel’s deliberations on it in any way.

UPDATE: In this 2014 post, I outlined several reasons why executive discretion would not become unlimited if the DAPA policy is ultimately upheld by the courts. The post nonetheless recognizes that presidential discretion over law enforcement poses serious dangers and suggests some ways to reduce the problem.

UPDATE #2: I have made a few minor changes to this post, primarily adding a couple of additional links.