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Ilya Somin on the President's Power to Not Enforce the Law
Michael Ramsey

At Volokh Conspiracy, Ilya Somin has a post titled In Praise of Obama's New Immigration Policy.  It's mostly a defense on policy grounds (which I don't care about, at least for purposes of this blog), but it has this argument on the constitutionality of the President's order:

Some critics, such as John Yoo and Arnold Kling, attack the president’s decision not on the merits, but on the grounds that he lacks legal authority to choose not to enforce the law in this case.

This criticism runs afoul of the reality that the federal government already chooses not to enforce its laws against the vast majority of those who violate them. Current federal criminal law is so expansive that the majority of Americans are probably federal criminals. That includes whole categories of people who get away with violating federal law because the president and the Justice Department believe that going after them isn’t worth the effort, and possibly morally dubious. For example, the feds almost never go after the hundreds of thousands of college students who are guilty of using illegal drugs in their dorms. The last three presidents of the United States – all have reason to be grateful for this restraint.

Yoo contends that there is a difference between using "prosecutorial discretion" to "choose priorities and prosecute cases that are the most important" and "refusing to enforce laws because of disagreements over policy." I don’t think the distinction holds water. Policy considerations are inevitably among the criteria by which presidents and prosecutors "choose priorities" and decide which cases are "the most important." One reason why the federal government has not launched a crackdown on illegal drug use in college dorms is precisely because they think it would be bad policy, and probably unjust to boot. That, of course, is very similar to Obama’s decision here.

Finally, Yoo also argues that prosecutorial discretion does not allow the president to refuse to enforce an "entire law," as opposed to merely doing so in specific cases. But Obama has not in fact refused to enforce the entire relevant law requiring deportation of illegal immigrants. He has simply chosen to do so with respect to people who fit certain specified criteria, that the vast majority of illegal immigrants do not meet. Even if the president did choose to forego enforcement of an entire law, it’s not clear to me that that is outside the scope of prosecutorial discretion. A president who uses his discretion to "choose priorities" could reasonably conclude that enforcement of federal laws A, B, and C is so much more valuable than enforcement of D that no resources should be devoted to the latter if they could possibly be used for the former.

These are all fair points, though I'm left with two questions:

(1)  Where would Professor Somin draw the line between permissible non-enforcement and violation of the take care clause?  Could the President, if unable to persuade Congress to enact a middle-class tax cut, announce that henceforth people making below a specified income level will not be punished for failing to pay taxes?  I'd be surprised if many people think he could do that, but I'm having some trouble seeing how the present policy is different.

(2) Is it true that all of the President's policy can be explained simply as a decision not to enforce the law?  Professor Somin assumes so, but my limited understanding was that the policy conveys affirmative benefits.

UPDATE:  Professor Somin responds (via an update to his original post) as follows:

On Ramsey’s first question, I would say that the president could indeed choose not to prosecute people making below a specified income for tax evasion. I think that is an inevitable result of a system of separation of powers where prosecutorial discretion is lodged in an executive separate from the legislature. The constraint on this kind of abuse of power is primarily political. A president who takes discretion too far risks a backlash by Congress and the public. Notice that the same scenario could arise from the use of the president’s pardon power. The president could announce that he will pardon anyone who is convicted of tax evasion if their annual income is below a certain level. No one doubts that the Constitution gives him such authority, and that the relevant constraint on it is mostly political. In reality, president’s are unlikely to massively abuse prosecutorial discretion for much the same reason as they are unlikely to pardon anyone who violates a federal law they disagree with.

Regarding the second question, I am not aware of any “affirmative benefits” attached to Obama’s decision, other than those that are inevitably attached to being able to remain in the US. If there are such benefits, they may indeed raise legal issues that go beyond the issue of prosecutorial discretion.

Leaving the second point aside for now (because it's not as interesting), I'll further comment on the first by saying:  Wow, so the President can lower everyone's tax rates by executive order?  Why then did President Bush work so hard in 2001 to encourage Congress to enact the "Bush tax cuts" when he could have just announced that anyone who paid at the rate he specified wouldn't be prosecuted?  Relatedly, does that mean the President can in effect adopt a (temporary) flat tax by saying that anyone who pays, say, 10% of income in taxes doesn't need to worry about enforcement? 

More seriously, it seems to me that we face here two conflicting constitutional rules: the President's Article II, Section 3, obligation to take care that the laws are faithfully executed and the President's Article II, Section 1, executive power to decide how to enforce the law.  The challenge is to explain how they interact.  Professor Somin's response seems instead simply to ignore one of them.  In posing my hypothetical, I was trying to draw out his explanation of the take care clause.  But perhaps he thinks that the President does not have an obligation to enforce the laws.  I'm not sure how that could be reconciled with the Constitution's text, but I'm also not sure what other conclusion to draw from his response.

RELATED:  Charles Krauthammer argues here that the key is a blanket rule versus case-by-case discretion:

Prosecutorial discretion is the application on a case-by-case basis of considerations of extreme and extenuating circumstances. No one is going to deport, say, a 29-year-old illegal immigrant whose parents had just died in some ghastly accident and who is the sole support for a disabled younger sister and ailing granny. That’s what prosecutorial discretion is for. The Napolitano memo is nothing of the sort. It’s the unilateral creation of a new category of persons — a class of 800,000 — who, regardless of individual circumstance, are hereby exempt from current law so long as they meet certain biographic criteria.

This is not discretion. This is a fundamental rewriting of the law.

I'm not sure that's right either.  I don't see why the executive can't exercise discretion categorically rather than case-by-case.  The Highway Patrol may decide, for example, that even though the speed limit is 65, it won't bother stopping anyone going under 70 (regardless of individual circumstances).  I think we would understand that as an exercise of executive enforcement discretion, not as rewriting the law.  The puzzle goes deeper than Krauthammer suggests, I think.