If Arizona “Misguided” In Acting Alone On Immigration, Why Not Obama?

When Arizona, frustrated that the federal government was not enforcing immigration laws, acted itself to enforce immigration law, President Obama called that unilateral action misguided. “Our failure to act responsible at the federal level will only open the door to irresponsibility by others,” he said. “[I]f we continue to fail to act at the federal level, we will continue to see misguided efforts opening up around the country.”

No state, the Obama administration argued in its Supreme Court brief challenging Arizona’s actions, is allowed to act on its own when it is not satisfied with immigration action or inaction at the federal level because “it is Congress that has been granted and exercised plenary authority over alien registration, employment, apprehension, detention, and removal, and it is the Executive Branch to which Congress has assigned the implementation of that authority.” In Arizona v. United States, the Supreme Court substantially agreed.

One can quote excerpts from the administration brief almost at random intervals that seem to prohibit deviation from immigration law. Examples:

Congress declined to impose criminal penalties on unauthorized aliens who work or seek work, and it imposed only civil immigration consequences for working without authorization (and criminal penalties for fraud); Arizona’s “criminalization of work,” the court of appeals concluded, was likely preempted as “a substantial departure” from Congress’s approach.
….
Congress has likewise set forth a comprehensive scheme governing employment of aliens. When an employer hires an individual, the employer must follow a statutorily specified procedure to verify that the new employee is authorized to work. Employers are subject to carefully graduated penalties for breaches of that duty. Employees are subject to criminal punishment only for deceptive practices in seeking employment, and they may face civil consequences for working without authorization. But Section 5 seeks to criminalize working, or even seeking work, without authorization, a penalty rejected by Congress and contrary to the balanced and comprehensive framework Congress created….

….

Arizona seeks to enforce federal immigration law through means different from those Congress designated: it has criminalized acts that Congress has decided to punish only civilly; it has allowed county prosecutors to charge and incarcerate individuals for violations that the Executive Branch has decided not to pursue; and it has required state officers to take steps in the name of federal law enforcement without regard to the policies and priorities of the federal officials in whom Congress has vested enforcement authority. Those provisions significantly intrude on the comprehensive system Congress has enactedArizona seeks to enforce federal immigration law through means different from those Congress designated: it has criminalized acts that Congress has decided to punish only civilly; it has allowed county prosecutors to charge and incarcerate individuals for violations that the Executive Branch has decided not to pursue; and it has required state officers to take steps in the name of federal law enforcement without regard to the policies and priorities of the federal officials in whom Congress has vested enforcement authority. Those provisions significantly intrude on the comprehensive system Congress has enacted.

….

By insisting indiscriminately on enforcement in all cases, and requiring state and local officers (whenever practicable) to verify the immigration status of everyone they stop or arrest if there is reasonable suspicion that the person is unlawfully present, Section 2 forbids officers—on pain of civil penalties—from looking to the lead of federal officials and adhering to the enforcement judgments and discretion of the federal Executive Branch. Congress’s authorization of “cooperat[ion]” does not permit Arizona to set its own immigration policy.

President Obama’s recent “executive action” is at least as much “‘a substantial departure’ from Congress’s approach” to immigration enforcement as Arizona’s was, and even more “misguided.”

Obama’s Indiscretions

Perhaps the central legal/constitutional issue raised by President Obama’s “executive action” on immigration concerns a debate over the location of the murky and meandering border separating the president’s legitimate discretion in enforcing the law from his lack of authority to change it — a lack of authority made crystal clear even in the Memorandum by the Office of Legal Counsel relied on by President Obama to justify his action.  (The best discussion of this issue I’ve seen so far is Josh Blackman’s brilliant analysis of the Office of Legal Counsel’s memo here and here, arguing forcefully that the executive actions cannot be justified by prosecutorial discretion because, among other reasons, they leave no room for actual discretion.)

It is useful to keep in mind that whatever prosecutorial discretion a president possesses is a subsidiary, derivative power that flows from his Article II authority to execute the laws. Since Article II does not empower a president to rewrite or change laws passed (or not passed) by Congress, he cannot do so under some independent prosecutorial discretion power.

Obama — who has often boasted, as here, that “I am a constitutional lawyer” — apparently does not understand his Office of Legal Counsel’s memo on which he purports to rely, or never read it, or simply regards it as political cover, not actual, you know, legal advice. Thus yesterday in Chicago he freely — indeed, boastfully, as is his won’t — as reported by CNN he replied to hecklers: “‘What you’re not paying attention to is, I just took an action to change the law,’ he said as the crowd applauded.”

Josh Blackman adds (yes, his blog is invaluable) that this is not the first time Obama has boasted about doing what even his own OLC says he is not allowed to do, quoting him on changes to Obamacare:

One of the main objections that’s the basis of this suit is us making a
temporary modification to the health care law that they said needed to be modified.  (Laughter.)  So they criticized a provision; we modify it to make it easier for business to transition; and that’s the basis for their suit.

I suppose we should be thankful for small favors, and feel fortunate that Obama has not thought of taking “executive action” simply to disband Congress and send the troublesome, obstinate, unnecessary lawmakers home.

 

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