Published November 21, 2014
The executive actions on immigration that President Obama announced yesterday, and the two kinds of modes in which his administration made the announcement (a presidential speech and a Department of Justice legal memo), highlight the challenge of thinking constitutionally in an age when constitutional thought and legal thought have been almost entirely confused for one another.
The most characteristically Obama-like moment in the president’s speech last night was surely his pausing to lecture the Congress about why his action on immigration shouldn’t distract from work on other matters. “Don’t let a disagreement over a single issue be a deal breaker on every issue,” the president said. “That’s not how our democracy works, and Congress shouldn’t shut down our government again just because we disagree on this.”
That’s not how our democracy works. Just incredible. If there’s one subject in which this president has made himself an expert it is how our democracy doesn’t work, and in the course of these six years he has brought forward a diverse array of methods of policymaking that aren’t how our democracy works. Some of those methods, particularly some of those used to selectively enforce Obamacare, have offered even more stark and obvious examples than this immigration action of failures to uphold the president’s obligation to take care that the laws be faithfully executed. The action announced last night did not break new ground in terms of failures to carry out the law, I think. Where it broke new ground, rather, was in encroaching upon Congress’s turf. This action was not passive aggressive; it was active aggressive. It was, in some key respects, an act of legislation.
The president’s own rhetoric betrayed the difficulty of arguing otherwise. It had all the markers of the announcement of a new program. He said he wasn’t changing U.S. immigration law and wasn’t changing anyone’s legal status and yet he also said he was offering a select class of illegal immigrants a deal: “If you meet the criteria, you can come out of the shadows and get right with the law.” Of course, people who take his deal wouldn’t be any more right with the law after taking it than before. They would be treated differently by the agencies enforcing that law because the president would like to treat them differently. But the president and his speechwriters understandably could not resist describing that change in treatment as effectively a change in status.
The problem was even clearer when the president turned to addressing the question of his authority to act:
And to those members of Congress who question my authority to make our immigration system work better or question the wisdom of me acting where Congress has failed, I have one answer: Pass a bill. I want to work with both parties to pass a more permanent legislative solution. And the day I sign that bill into law, the actions I take will no longer be necessary.
What we see here is the president describing his action as legislative in character. If Congress questions his authority, it should act where he has acted; if Congress acts then his own action would be deemed unnecessary. He is saying he has stepped into a legislative space that Congress has declined to occupy.
And this, after all, is the basic problem. The first sentence of the first article of the United States Constitution says “All legislative Powers herein granted shall be vested in a Congress of the United States.” All of them. The key question about the steps the president announced last night is whether they can be plausibly described as faithfully executing an existing law or whether they are instead best understood as effectively making law.
The administration’s lawyers in the Office of Legal Counsel at the Department of Justice have done their best to make the former case—and the document they produced is worth your close attention. It is filled with various interesting nuggets (for instance, I take the OLC to be strongly suggesting that DACA, the president’s prior executive action granting deferred action to people brought to America illegally as minors, is not legally defensible). But it is most interesting for its general thrust. The memo suggests, above all, that the case for Obama’s action as a permissible exercise of discretion can only be sustained if we focus very intensely on a few small details of the president’s action and completely ignore its context in the practical realities of the immigration debate in American politics and the place of that debate in our national life at the moment. In essence, Obama could confer the benefits he has conferred on the select group he has chosen because the members of that particular group (parents of American-citizen or legal-resident children) would ultimately have a path to legal status and citizenship through their children, who could petition on their behalf when they turn 21. So if we strain our eyes very hard, the benefit the president has offered them—deferred action and a work permit—can be understood as a stopgap before they are given that path to actually legal legalization. (The absence of such a justification for DACA is why I take the OLC to be suggesting DACA is on even thinner ice.) Even on these terms, OLC acknowledges the case is very hard to make, but it ultimately concludes it is possible.
But in speaking to the public at large, the president of course could not ignore the larger realities of the immigration debate, and therefore could not avoid justifying his actions in terms that paint them as essentially legislative. This has been the rub of this debate from the start: If the Constitution is merely a technical legal document, it might (perhaps) be possible to defend this action as somehow within the bounds of the president’s enforcement discretion. But because the constitution creates a political order—a structure for the political life of an actual society—it is very difficult to sustain such a defense in the real world. That combination of factors means that a judge might well sustain the president’s action as minimally defensible if it was challenged in court but the Congress cannot consider it so. And both would be playing their proper constitutional roles.
As the great James Ceaser of the University of Virginia has put it, the Constitution needs to be understood in two separate if related senses:
The first sense—legalistic constitutionalism—understands the Constitution as a set of rules that can decide policies or cases; these rules are of a sort that can offer definitive answers and that could be employed and enforced by courts. The second sense—political constitutionalism—understands the Constitution as a document that fixes certain ends of government activity, delineates a structure and arrangement of powers, and encourages a certain tone to the operation of the institutions. By this understanding, it falls mostly to political actors making political decisions to protect and promote constitutional goals.
We have leaned very heavily in recent years in the direction of a legalistic understanding of the Constitution. But as Ceaser notes, the political understanding is at least as crucial. (For a similarly powerful argument regarding this distinction, I would also highly commend Ramesh’s chapter in the YG Network’s recent policy book, Room to Grow.)
Another way to see this difficulty, as it relates to the immigration action announced yesterday, is to think about this action in terms of the nature of the question of its constitutional legitimacy. If we approach the Constitution as simply a technical legal document, we would inquire into the legitimacy of this action by asking something like the two questions that the OLC memo starts with:
whether, in light of the limited resources available to the Department (“DHS”) to remove aliens unlawfully present in the United States, it would be legally permissible for the Department to implement a policy prioritizing the removal of certain categories of aliens over others…
[and second] whether it would be permissible for DHS to extend deferred action, a form of temporary administrative relief from removal, to certain aliens who are the parents of children who are present in the United States.
These are appropriate questions, and they have to be considered in the context of legal precedents and criteria about executive responsibility and executive discretion. The OLC answers that, in light of those precedents and criteria, this action is highly questionable and on the edge of impermissible in a number of respects but ultimately concludes that this means the whole thing is near that edge but nonetheless defensible. That’s a very questionable conclusion, to be sure, and will be hotly debated. And this hyper-legalistic approach shows no sign of even attempting to honor the president’s constitutional obligation to “take care that the laws be faithfully executed.” What this memo concludes is that the president is probably doing the bare minimum required to plausibly remain within the law in this case. But more importantly, this is an answer to only one sort of question that needs to be asked about this sort action. This form of the question is the one the courts might take up if this executive action is put before them.
If, however, we approach the Constitution as not simply an abstract and technical legal document but a whole political order in the real world, we would inquire into the legitimacy of this action by asking something like “can the president unilaterally exempt 40 percent of illegal immigrants from legal action and give them work permits?” And that question has to be considered in the context of tense inter-branch relations and a multi-decade immigration debate pursued through our normal constitutional process of lawmaking and in which the question of the status of the millions of people who entered the country illegally has been central. This form of the question is the one Congress has to take up, and it is hard to see how the answer could be anything but absolutely not.
These are both plausible ways to pose the basic question of the legitimacy of this action, but they are very different questions and the difference highlights the nature of American constitutionalism. These are basically the ways in which the judicial and the legislative branches, respectively, need to think about extraordinary executive actions. In the context in which our two elected branches interact in the world, this executive action is an aggressive invasion of Congress’s turf and an attack on its prerogatives. The president can hardly avoid describing it that way in his own efforts to defend its legitimacy, and Congress cannot avoid seeing it that way except by an act of willful blindness.
Congressional Democrats are clearly willing to engage in that willful blindness. They have been willing to do that throughout the Obama administration (when their partisan interests have been in tension with their institutional interests), including in instances when the president described them and their institution as unnecessary. Their willingness to abandon the institutional prerogatives of the Congress has been one of the more distressing features of the politics of the last few years. But congressional Republicans (whose partisan interests have been aligned with their institutional interests in the last six years but not the prior eight) have not done all that much better. They have been guilty of turning over congressional power to the executive in recent decades nearly as much as the Democrats, and the means their leadership has chosen to respond to the most serious provocations of this sort in the Obama years—a lawsuit in federal court—is obviously not well suited to a view of the Constitution as more than a legal document.
To recover their prerogatives, they will need to recover a fuller sense of the constitutional system and their role in it. That doesn’t mean shutting down the government and taking maximal measures at every instance, but it does mean asserting their constitutional authority and looking for ways to use it to push back in an effort to advance their own understanding of what the proper balance should be.
That suggests that the congressional response to this presidential action cannot be nothing. To begin with, the Congress cannot actively acquiesce in this measure by funding it. At the very least, when the House passes a funding bill to get the government into next year it should exclude funding for the United States Citizenship and Immigration Services from that bill—as that is the agency that will be primarily responsible for carrying out this order. The House could then fund that agency through a separate measure that specifically prohibits USCIS from carrying out the president’s directive. Presumably Senate Democrats (or barring that, the president) would kill that second measure. But would they kill the first, denying funding to the entire government to protect the small USCIS line item?
They would have a particularly hard time doing so because USCIS is actually mostly self-funded (through fees paid by the immigrants using its services). Regular appropriation covers only about 5 percent of its funding in most years (an amount that has hovered around $120 million of annual appropriations in recent years), so the practical effect of a continuing resolution that excluded such funding would be fairly small. The administration could still work to carry out the president’s directive by moving money around within the agency—prioritizing illegal immigrants even further over those who are following the rules, if they so chose. But Congress would not be funding the implementation of this order. It simply cannot make itself an accomplice in its own defenestration.
Some have argued that the fact that USCIS is largely self-funded is a barrier to this kind of move because it means Republicans can’t defund the new directive. But I think that its being largely fee-funded is an advantage, because it means that even in this Congress, with Democrats still in control of the Senate, there is an opportunity for Republicans to assert some of Congress’s authority and to avoid congressional complicity in this presidential transgression. It is a move Democrats could probably live with, yet one that sends a clear first message of response in this confrontation the president has initiated. That’s a good thing.
That much at least, or something like it, seems simply necessary. As to other measures of response, Republicans should consider them individually and prudentially. Maybe that should mean that the next congress formally censures the president for this action, or declines to act on some of his nominees until he reverses it (particularly those for positions, like the Attorney General, who might have some say over future decisions about executive power). Other measures and opportunities will no doubt present themselves as the new congress gets going too. These will not enable the Congress to force a presidential reversal. There appears to be no readily achievable way to do that at this point. That’s not the end of the world. But ultimately the response this requires is a reassertion of congressional authority in its proper sphere. It’s not a now-or-never situation and it’s not an all-or-nothing war. It is a struggle for balance in a system of divided powers. That means it must be an ongoing effort: Blind zealotry in its pursuit is not practically wise, but passivity (of the sort that has become the hallmark of Republican leaders in Congress) is not an option. Congress must find a middle way. That’s what it means to play a part in our constitutional system.
It is important to see that passivity by the party’s leaders leads not just to underreaction but also to overreaction. I wonder if, even now, Republican congressional leaders have come to terms with the fact that it was their passivity—their unwillingness to propose a strategy and open an internal discussion about how to proceed—that made last year’s counterproductive shut-down fight possible. All and nothing are not the only options for Congress when it considers how much of its power and attention to put into the defense of its institutional prerogatives or into the pursuit of important policy objectives, but finding defensible ground between all and nothing requires the party in power to look for it.
The stakes are high. Our constitutional system is falling further out of balance in the direction of presidential excess, and it is so not only because of this president and prior ones but also because of this congress and prior ones. For many years now, under different leaders of different parties, the Congress has been ceding power to the president. A move like the executive action President Obama announced last night is a natural consequence of such a trend—it happened not because Congress declined to pass an unwise immigration bill but because the president could imagine that he had the authority to change the nation’s immigration policy himself. That consequence of congressional weakness should also be a wake-up call for Congress. And bringing the system back into balance will require members of Congress to see themselves as charged with doing so—and to understand the Constitution as the purview not only of lawyers and judges but also of the legislature, the executive, and the public.
That’s how our republic works.
— Yuval Levin is the Hertog Fellow at the Ethics and Public Policy Center