In a move that, if not intentionally calculated to polarize the electorate, might as well have been, Homeland Security Secretary Janet Napolitano today announced an order aimed primarily at U.S. Immigrations and Custom Enforcement, by which “low-priority” undocumented persons will effectively no longer be apprehended or deported. It took effectively zero time for critics of the Obama Administration to accuse the President of imperiously, unilaterally, and quite possibly unconstitutionally enacting the DREAM Act, a bill which Congress has twice failed to pass, by Executive Order.
Now, this isn’t an Executive Order. It is a Cabinet Department statement of policy, which is not quite the same thing as an Executive Order. But, does this policy usurp Congress’ clear power to control immigration policy? You don’t have to be a flag-waver for Team Red to be concerned about something like this, after all.
1. Executive Discretion versus Rule By Decree
I’ve staked out my position on this issue before; coincidentally, in a now mostly set-aside controversy about Arizona’s HB 1040:
There are those who deny that the President has any lawmaking powers at all. If the term “lawmaking” is defined very narrowly in terms of “legislation” that is probably correct, except to the extent that Congress has delegated that power to the President and agencies reporting to him, thus resulting in the amazingly complex and intricate Code of Federal Regulations. But if “lawmaking” is defined as “creating the enforceable rules that govern our society” then it is quite clearly a power shared by, and intended to be shared by, all three branches of government. Prioritizing among various legislative objectives is one of the things left to the President’s discretion and it is, itself, a form of lawmaking. Therefore, Arizona’s law challenges the President’s ability to decide to focus resources in one area and not in another; it attempts to force the President’s hand at allocating resources among various kinds of Federal law enforcement activities. [¶] Prioritizing is a power inherent in the Presidency; it is in a very real sense the most meaningful part of the President’s job.
So, let’s say that instead of this announcement, the President (through his Cabinet Secretary) said this:
I direct ICE and USCIS to prioritize enforcement of deportation as follows: Top priority will be given to identifying, apprehending, and deporting individuals who entered the country without documentation and after doing so committed violent crimes here; second priority will be given to similarly addressing those who committed drug crimes here; third priority to those who did so after fabricating or purchasing fabricated immigration documents with an eye towards disrupting organized criminal operations fabricating forged immigration documentation; and lowest priority to those who entered the country as minors in the custody of their parents and since entry have committed no other crimes.
That wouldn’t bother me in the slightest, and I doubt that deporting violent criminals with greater urgency than deporting non-violent immigrants would meet with many reasonable objections. This isn’t making a law, it’s taking existing law authorizing deportation of undocumented foreign nationals and saying which among that group will be prosecuted first.
2. The Actual Policy
But how does my hypothetical and presumably non-objectionable order compare to the actual order promulgated today? Let’s read the order itself:
The following criteria should be satisfied before an individual is considered for an exercise of prosecutorial discretion pursuant to this memorandum:
- came to the United States under the age of sixteen;
- has continuously resided in the United States for a least five years preceding the date of this memorandum and is present in the United States on the date of this memorandum;
- is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
- has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and
- is not above the age of thirty.
* * *
No individual should receive deferred action under this memorandum unless they first pass a background check and requests for relief pursuant to this memorandum are to be decided on a case by case basis. DHS cannot provide any assurance that relief will be granted in all cases.
Secretary Napolitano uses the word “discretion” five times in her three-page memorandum, four times referring to it as “prosecutorial discretion.” It’s pretty clear she’s aiming at the sort of permissible thing I give my green light to above. But the objection isn’t to the idea that ICE or USCIS or some other agency can exercise prosecutorial discretion, the objection is that the order as a whole effectively enacts a law that Congress has rejected.
3. What the DREAM Act Would Have Wrought
Had it been passed into law, the DREAM Act would have granted permanent residency (conditional upon not committing any crimes) to undocumented foreign nationals of (otherwise than being in the country without documentation) good moral character who: 1) first came to the U.S. as a minor; 2) graduated from a U.S. high school; and 3) had lived in the U.S. continuously for five years. These criteria are similar to but not identical to the criteria in Secretary Napolitano’s policy declaration. DREAM would have given temporary residency to undocumented aliens 35 years or younger who had completed two years of military service and not been dishonorably discharged, or two years of college at an accredited four-year postsecondary institution.
These are strongly similar, but not identical, the criteria Secretary Napolitano describes. A “minor” is generally someone under 18 years, so where DREAM applies to those who entered the U.S. at age 17, the new policy does not. In that sense, the new policy is slightly more restrictive than DREAM. DREAM applied to people 35 years of age or younger; the new policy applies to people 30 years of age or younger, again slightly more restrictive. On the other hand, DREAM would have required a high school diploma for permanent residency and at least two years of college or two years of honorable military service for temporary residency; the new policy requires current enrollment, a high school diploma, or any honorable discharge regardless of length of service, and so is somewhat more permissive than DREAM. “Good moral character” and “has not committed any significant crimes” are roughly the same thing, so those portions of the policy are functionally the same.
The critical difference is that the new policy refers to deferring deportation actions, where DREAM would have granted residency. Under the current policy, those who are eligible for deferments of deportation actions enjoy that deferment for only so long as the discretion of the Executive is that they do so. (Which means, among other things, that if a new Administration takes office, it could unilaterally withdraw this policy.)
4. Back To The Basic Question
I don’t think there’s much doubt that Congress could pass the DREAM Act consistent with the Constitution. That it has not done so is a function of the political pressures on Congress, which presumably reflect the popular will. And I think the DREAM Act is at minimum a step in the right direction to imposing some sense, logic, and rationality in our badly-warped immigration laws. But just because something is a good idea doesn’t mean it’s OK with the Constitution. And it’s one thing to set a priority within the framework of existing laws and it’s something else to craft an entirely new policy that is contrary to law and contrary to the expression of political will.
It was actually a close call, with its advocates failing to break a filibuster, having obtained only a minority vote of 52 Senators willing to consider the bill in 2009. The House of Representatives has been cooler to the bill than the Senate, being governed by different rules and different operating norms than the Senate, but there is still both substantial support and entrenched opposition to the proposed law in Congress, and it appears that the entrenched opposition to the proposed law commands a majority of votes. We could presume that this state of affairs roughly mirrors the political will of the electorate as a whole.
But at the same time, the bill has never come to a direct up-and-down vote in either the Senate or the House; it’s always been stymied by filibuster in the Senate and efforts to water down the bill to make it more acceptable to Republicans in the Senate have failed. So the presumption that a majority of Americans disapprove of the DREAM Act based on Congress’ behavior is not a particularly strong one if the reason the bill has failed in the past is due to procedural machinations rather than direct votes.
So the question is, if the President thinks that a large minority of the country has a better idea than the majority, ought the President to respect the wishes of the majority, or ought he to do what he can to implement what he thinks is the better idea despite the political quagmire awaiting the proposal in Congress? That depends on whether you think the President is supposed to represent the people as a whole, or whether he is supposed to lead the government. Ideally, he’d do both at the same time but in this case there is a forced divergence. And in a democracy, a majority deserves a degree of deference even if the majority is only slight.
Constitutionally, the question I think we need to address is whether the proposed new policy is contrary to existing statutory law. That is the clear marker of having crossed the line between setting priorities and making new laws. So far as I know, the new policy is not contrary to existing immigration law, at least not on its face. In substance, the declaration of prioritization that I would permit as described above is actually similar to the declaration of policy issued by Secretary Napolitano today despite its substantive similarity to the twice-failed-in-Congress DREAM Act. As long as the picking and choosing of who to prosecute and who to not prosecute is done along some rational, non-discriminatory basis, I think this is on the right side of things.
To mix sports metaphors to the Constitutional question: this one is close to the foul line, but the ball is in bounds. At least on the face of things.
What might happen, though, is that through the exercise of this discretion, the executive could as a practical matter pick and choose who gets to stay and who goes through deportation proceedings on some irrational or even malign basis. (Not this President, surely, nor his current political adversary from the other party, but some hypothetical future President we all ought to distrust.) Then we’d be looking at a practice that might be contrary to law, not a policy. But challenging a practice is a different thing than challenging a policy. That’s a question we’ll have to defer until another day when actual data about how the policy is actually implemented begins to accumulate.
5. The Political Question
Now, I realize many, many people in the U.S. disagree with my opinion that we need substantial liberalization of current immigration policy; the matter is sharply divisive because there are no easy answers, no good solutions, and ambiguity on both sides of the issue unless one is willing to discard compassion on the one hand, or acknowledgement of the basic realities of law and nationhood on the other. So I fully expect that the political response to this from Team Red and the Romney ’12 campaign should be something along the lines of:
After four years of Barack Obama’s administration, we still have nearly one in ten American citizens who want jobs and don’t have them, and you’re going to let in somewhere between 800,000 to a million non-citizens to compete with them for a bunch of jobs that don’t even exist yet — if they are ever even going to exist?
That could be a powerful political argument to moatdiggers. Those voters who do desire immigration liberalization were probably going to vote for Obama anyway. Those voters who desire immigration restriction were probably going to vote for Romney anyway. If it’s a play to “pump up the base,” anything that even smells like liberalization seems to me that it’s likelier to pump up the moatdiggers more than the open-borders types (with both labels being characterizations of the extreme positions).
So while I think that this is a constitutionally permissible exercise of discretion, until and unless someone can demonstrate how this policy is contrary to statutory law, I also think it may not be the wisest political move.