Josh Blackman and Ilya Somin on Executive Enforcement Discretion (Updated)Michael Ramsey

Josh Blackman and Ilya Somin have competing views of the district court decision in Texas v. United States enjoining the President's non-enforcement of the immigration laws.

Up to a point, I agree with Professor Somin:

[T]he [immigration nonenforcement] policy is little different than numerous other situations where the executive branch chooses not to enforce a variety of federal laws in particular situations, such as the de facto policy of not enforcing federal laws banning marijuana possession on college campuses. The latter actually affects a far larger number of lawbreakers than Obama’s new immigration policy does. Some 70% of Americans have violated federal criminal law and millions have also violated various federal regulations that carry civil penalties. Every administration chooses to pursue only a small fraction of these cases, and in the process effectively exempts large categories of offenders from any legal sanction.

But I am less sure about these observations: 

[The district court] claims that the administration’s new [immigration nonenforcement] policy creates “a standard of conduct” that “has the force of law” and is “clearly contrary to Congress’ intent.” He claims that “[t]he DHS cannot reasonably claim that under a general delegation to establish enforcement policies, it can establish a blanket policy of nonenforcement that awards legal presence and benefits to otherwise removable aliens.” In his view, the administration’s policy is “in effect, a new law.”

... [T]his reasoning fails because the administration’s decision does not actually have “the force of law” or legalize the status of previously illegal immigrants. While the administration has committed to a policy of not deporting those aliens who fall within the scope of the policy, it has not declared their presence in the US to be legal, nor given them any “benefits” that have the force of law (the benefits in question are primarily exemption from enforcement of federal laws banning the employment of illegal aliens). Both the acceptance of their presence in the US and the work permits can be withdrawn by President Obama or his successors at any time. By contrast, the executive cannot and does not have the power to revoke legal status that genuinely has the force of law, except perhaps in cases where Congress has specifically delegated the power to do so.

As the district court opinion puts it, in a passage I predict will be widely quoted:

Exercising prosecutorial discretion and/or refusing to enforce a statute does not also entail bestowing benefits.  Non-enforcement is just that -- not enforcing the law.  Non-enforcement does not entail refusing to remove these individuals as required by law and then providing three years of immunity from that law, legal presence status, plus any benefits that may accompany legal presence under current regulations.

Although I'm not an expert in this area, the district court's characterization of the policy seems more accurate here.  Unlike marijuana nonenforcement (on which I entirely agree with Professor Somin), the immigration nonenforcment does appear to me to convey affirmative benefits.  It allows covered persons the ability to work (which they would not otherwise have) and (at least under the executive branch's view of the matter) requires states to treat the covered persons as legally entitled to remain in and work in the United States on the same terms as legal immigrants.  It's true that these benefits can be withdrawn by executive order, but until they are, they are binding.  (Query: could an employer refuse to hire a person covered by the President's non-enforcement policy on the ground that the person is in the U.S. illegally?  My impression is that the answer is "no," because by the President's policy they are entitled to work in the U.S.  If that's correct, the policy goes beyond mere non-enforcement).

That's not to say that the executive action here is unconstitutional -- only that it has to be authorized by statute rather than resting just on prosecutorial discretion (which, as the district court says, is only non-action).

For more, see these articles by Professor Blackman: The Constitutionality of DAPA Part I: Congressional Acquiescence to Deferred Action and The Constitutionality of DAPA Part II: Faithfully Executing the Law.

UPDATE:  Josh Blackman has more here at NRO, plus also at NRO this from Andrew McCarthy.

Eric Posner has a different view here, which further confirms what is becoming the main point of disagreement: does the immigration non-enforcement order convey legal benefits?  Professor Posner says it does not.  But then he sort of acknowledges that it does, because it would [might?] preempt state law.  If the order changes (improves) people's legal status under state law, surely that conveys a legal benefit?