Every Democrat should be nervous about President Barack Obama’s plan for unilateral action on immigration reform. Not because of the impact on an already gridlocked Congress, or because it risks inflaming an increasingly hostile public. Democrats should be nervous about the implications for presidential power, and the ability of a future Republican president to act on his or her own.
Note that I said nervous, not opposed. In this situation, the executive power devil is in the details of what the executive actually does, both the scope of his actions and the legal justifications for them.
For me, the question is one of double containment: First, is there a limiting principle that would constrain the president’s authority to effectively legalize everyone in the country? Second, is there a limiting principle that would constrain future presidents inclined against enforcing other laws with which they don’t agree — and on which they’ve been unable to convince Congress to act accordingly?
The general White House argument in defense of unilateral action, spelled out for me by a senior administration official versed in the legal details, boils down to the general power of prosecutorial discretion, combined with particular provisions and practices embedded in immigration law.
The official acknowledged that there are clear limits to presidential power — he can’t hand out green cards or create a pathway to citizenship. But the official also noted that presidents have broad authority to set enforcement priorities; after all, there are about 11 million undocumented immigrants and budgetary capacity to deport perhaps 400,000 annually.
In addition, there is a bipartisan history of presidents taking unilateral action to address humanitarian problems in the absence of congressional solutions. Thus, George H.W. Bush in 1990 extended protection in the form of deferred deportation and authorization to seek employment to the spouses and children of individuals who had been granted legal status by a new immigration law.
Given this context, the administration argues that I can relax on both fronts. On immigration policy, however broad the scope of the president’s action — extend the protections granted to the so-called “dreamers” to their parents; grant the ability to remain in the country to the parents and children of U.S. citizens — it’s clear, this argument goes, that the president will not suspend all deportations and will continue to fully expend the congressional funds appropriated for this purpose.
On this front, size matters. The closer the president’s action edges to protecting all of those in the country illegally, the more legally dubious it becomes.
Power hard to contain
In terms of the impact outside of immigration — can a Republican president unilaterally decline to enforce the penalties for failing to buy health insurance? Exercise prosecutorial discretion not to penalize failure to pay the “death tax”? Stop going after violators of environmental laws?
Here, too, the administration poo-poos any spillover effect. The president would not be declining to enforce an entire law or category of law (as in my hypothetical of no Clean Air Act prosecutions, or tax enforcement of the individual mandate). He would simply be prioritizing how to use limited resources in continuing to enforce the law.
I see the distinction but remain uneasy — and I’m not the only one. University of Virginia law professor David Martin is a Democrat and a supporter of comprehensive immigration reform who served as principal deputy general counsel of the Department of Homeland Security during the Obama administration’s first two years.
“For Democrats, it’s a dangerous precedent,” he told me. “You’re opening the possibility for a Republican president to say, ‘I’m not going to go forward with enforcement in a number of areas.”
There are compelling humanitarian reasons for Obama to act. But the president and his allies must keep in mind: Presidential power, once expanded, is hard to contain.
