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John Yoo and Robert Delahunty: The Obama Administration, the DREAM Act and the Take Care Clause
Michael Ramsey

John Yoo (University of California at Berkeley School of Law) and Robert J. Delahunty (University of St. Thomas School of Law (Minnesota)) have posted The Obama Administration, the DREAM Act and the Take Care Clause (Texas Law Review, Vol. 91, No. 4, 2013) on SSRN.  Here is the abstract:

The Obama Administration announced last June that it would not enforce the removal mandate of the Immigration and Nationality Act as against as many as 1.76 million immigrants illegally present in the country: young people, often students or veterans, who were brought into the country illegally as children and who would have been legalized if Congress had passed the “DREAM Act.”

This essay explores the constitutionality of such uses of prosecutorial discretion. Our main conclusions are: first, the common idea that the President has a positive constitutional “authority” to decide not to enforce the civil law is mistaken. The Take Care Clause, coupled with related constitutional provisions, establishes that the President has a duty to enforce the laws. This understanding of the President’s responsibility is supported by the Constitution’s text and structure, by the evidence of original intent and early practice, and by English constitutional history.

Second, a range of defenses can be made to a breach of duty. The main justifications or excuses that can be used to defend a breach of the duty of faithful execution fall into four main categories: that the “law” whose non-enforcement is at issue is unconstitutional; that enforcement in the particular circumstances would interfere materially with the exercise of another constitutional power of the President; that equity in individual cases warrants forbearance in enforcement; and that the enforcing agency lacks sufficient resources for complete enforcement. The Administration’s non-enforcement decision does not fall within any of these categories.

Third, the conception of Executive power we defend here is fully consistent with the attribution to the President of broad constitutional powers over foreign affairs, national security and military policy. The Framers intended to give Congress the dominant role in regulating domestic matters, while giving the Presidency, with its distinctive institutional qualities of energy, secrecy, speed and unity of purpose, the primary responsibility for foreign affairs. Although immigration straddles domestic and foreign policy, Congress, not the President, has the controlling authority.

The article is featured at FoxNews.com: Obama's refusal to deport illegal aliens unconstitutional, say law professors (plus a op-ed version of the article by Professor Yoo here).  The Fox report includes this response from the Department of Homeland Security (DHS):

"The authority of the Secretary of Homeland Security to exercise prosecutorial discretion, including by granting deferred action, has long been established and has been recognized by the Supreme Court," said DHS spokesman Peter Boogaard. "This authority was reaffirmed by the Supreme Court just this year [Arizona v. United States (2012)].”

“That said, DHS’s deferred action for childhood arrivals process is only a temporary measure that does not provide a path to citizenship; Congress must still act to provide a permanent solution to fix the broken immigration system.  Until Congress acts, DHS is dedicated to implementing smart, effective reforms to the immigration system that allow it to focus its resources on common sense enforcement priorities, including criminals and other public safety threats."

As I've indicated here before, I pretty much agree with Professor Yoo on the executive power point (and that's not something I say all that often); his article's discussion of English constitutional history in part II.B (starting around fn. 97) seems especially important.  But I continue to think a defense of the President may be found in the discretion conveyed by the immigration laws.  On the other hand, I still have not heard anyone give a full-scale defense of the President's actions on statutory grounds.