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06/17/2012

John Yoo: Executive Overreach (Updated)
Michael Ramsey

John Yoo on President Obama's decision to limit deportation.  Core argument:

Under Article II, Section 3 of the Constitution, the president has the duty to "take Care that the Laws be faithfully executed." This provision was included to make sure that the president could not simply choose, as the British King had, to cancel legislation simply because he disagreed with it. President Obama cannot refuse to carry out a congressional statute simply because he thinks it advances the wrong policy. To do so violates the very core of his constitutional duties. ...

Imagine the precedent this claim would create. President Romney could lower tax rates simply by saying he will not use enforcement resources to prosecute anyone who refuses to pay capital-gains tax. He could repeal Obamacare simply by refusing to fine or prosecute anyone who violates it.

So what we have here is a president who is refusing to carry out federal law simply because he disagrees with Congress’s policy choices. That is an exercise of executive power that even the most stalwart defenders of an energetic executive — not to mention the Framers — cannot support.

As Professor Yoo points out in his post, the President's "take Care" duty has two exceptions: the President is not required to enforce unconstitutional laws (though the scope of that exception is debated) and the President has prosecutorial discretion to "choose priorities and prosecute cases that are the most important, have the greatest impact, deter the most, and so on."  Presumably the President's argument here is that he has limited resources to enforce the immigration laws and so is exempting one class of cases to free up resources to pursue others.  And, the President would continue, there shouldn't be any reason why he has to make that sort of resource allocation case-by-case rather than (as here) through an across-the-board policy announcement.  But as Professor Yoo continues, resource allocation doesn't seem a fair description of what's happening here.  Purporting to exempt an entire class of people from enforcement on what amounts to reasons of fairness seems much more an exercise in lawmaking than in resource-driven enforcement discretion.  Even conceding that line is a hard one to draw, this one seems on the wrong side of it.

Mike Rappaport adds: I agree with Mike Ramsey here.  One additional point: It is interesting to consider how this claimed exercise of prosecutorial discretion interacts with state laws like Arizona's that purport to make certain acts criminal.  If President Obama's action is merely based on resource constraints, then having the states prosecute helps the President with enforcement.  If President Obama is using prosecutorial discretion to confer rights -- which it seems to be doing -- then Arizona is interfering.  But, of course, it is doubtful that the President has discretion to confer rights.

UPDATE (by Mike Ramsey)

Bob Krumm disagrees: Why Conservatives Should Applaud Obama’s Decision to Ignore the Law (via Instapundit).  Core argument:

The decision to cease enforcing particular provisions of immigration law was not, as some commentors have asserted, a presidential usurpation of legislative power. The Executive branch is not making law, as was the case when it attempted to declare carbon dioxide to be a pollutant in violation of the powers granted to the EPA by Congress. Instead, this is a case where the President disagrees with a law on the books, and thus unilaterally decides not to carry it out.

We have a long history of a passive aggressive presidency. Thomas Jefferson refused to spend $50,000 to buy gunboats to patrol the Mississippi River and America’s border with the French colony on its western bank when his purchase of Louisiana in 1803 made moot that border. I’m sure there was some Congressman in whose district those boats were to be made who objected to this first use of presidential impoundment power. Warren Harding and Calvin Coolidge were both famously cool toward the idea of enforcing the Volstead Act outlawing alcohol. Grover Cleveland didn’t fill numerous appointments, believing that government payrolls had grown bloated through patronage and spoils.

Since the very beginning of our Nation’s founding, there has been (by design) a healthy tension between the Legislative branch, which writes laws, and the Executive Branch, which executes those laws. Laws were only de facto valid when they were both on the books and willingly enforced. As every law is a limit upon the people, this created a very high barrier to restrictions on individual rights. In modern parlance we would say that it is a "feature, not a flaw," as the tension between the branches reinforces the desired ideal that the default position of the federal government is inaction.

There's a big difference, though, between footdragging (which are what most of the historical examples are) and flatly refusing to execute the law based on policy disagreement.  I don't see how, even in the abstract, Krumm reaches his conclusion that "[t]he Executive branch is not making law ... where the President disagrees with a law on the books, and thus unilaterally decides not to carry it out."  The President in that circumstance (which seems fairly to describe the current situation) is "unmaking" law, which is centrally a legislative function. 

True, a version of separation of powers that wouldn’t give the President an obligation to enforce the law, thus achieving an almost complete check on Congress.  But that’s not the version we have.   The constitutional text is, principally, the take care clause, which Krumm doesn't even mention.  The historical context is the seventeenth-century battle over the "dispensing" power in England – a power claimed by kings and strongly contested by parliament. As Steve Pincus recounts in his excellent 1688: The First Modern Revolution (see pp. 189-98, for example), James II’s claim of power to "dispense" with parliament’s laws was a central cause of the Glorious Revolution, which in turn became the centerpiece of the eighteenth-century English constitution. And that core structural feature of the English constitution is the basis of the take care clause, which may allow the sort of footdragging Krumm is talking about but doesn’t allow the President to exempt people from the law on policy grounds (which is exactly what James tried to do, and lost his crown over). Rather, in the Constitution’s version of separation of powers, the President’s check on Congress comes through the veto and override provisions of Article I, Section 7 – provisions that would be largely superfluous if Presidents could in effect nullify laws through non-enforcement.

I’ll add two more points. First, if this account is accurate, the President’s order goes beyond non-enforcement, to granting work permits to the affected immigrants. I’m not an expert in the immigration field, but it’s not obvious what the statutory basis for that could be – surely it couldn’t arise just from prosecutorial discretion. In any event, it would seem that the administration needs a formal account of its legal basis for acting – not least to prevent a wholesale future executive disregard of laws, as envisioned by Yoo and Krumm, claiming this episode as precedent.

Second, although Professor Yoo says the Bush administration never claimed a similar power, that’s not quite right. The Bush administration (through Professor Yoo, when he was at the Office of Legal Counsel) claimed the power to "suspend" the Geneva Conventions on the treatment of prisoners of war with respect to captives in the war on terrorism. (This provoked strongly-worded opposition from liberal critics, as I recall). But the claims seem to stand on much the same ground. The take care clause requires the President to enforce "the Laws." Article VI lists "all treaties" as part of "the supreme Law of the Land" (along with statutes). If the President can "suspend" the immigration laws with respect to a certain class of people, why can’t he "suspend" the Geneva Conventions with respect to a certain class of people (and vice versa)? I would say he can’t do either, but it might be tricky to get one without the other.