Contributor Post Created with Sketch. Executive Power and Immigration


Rumors abound that President Obama is soon to issue an executive order granting millions of illegal aliens some kind of legal status in the country and creating a permit system that would allow them to work. Current federal immigration law requires the deportation of these aliens and creates no work permit program. Most people admit that Congress has delegated no authority to the President to create classes of legal and illegal aliens — that is Congress’s job, which it has carried out by statute. I think the proposed order is unconstitutional — but unlike previous examples of Obama’s failure to enforce the laws, it is open to challenge in court.

The President has the constitutional obligation to “take care that the laws be faithfully executed.” (Article II, Section 3). That includes the discretion to allocate enforcement resources to best execute federal law, because the government does not have the power to enforce all laws all the time in all cases. Presidents can and should choose to throw the FBI and federal prosecutors, for example, at the highest-profile criminals who case the most harm to society. But prosecutorial discretion does not include the power to refuse to enforce an entire law’s application to millions of cases because of simple disagreement with the policy underpinning the law.

The only time that the President can refuse to enforce a law is if the law itself is unconstitutional (as when President Jefferson refused to enforce the Sedition Act, which made criticism of the government a crime). Here the President is refusing to enforce a law not because it is unconstitutional, but because he wants Congress to change its definition of illegal aliens and the circumstances for deportation. It will be difficult, if not impossible, however, to challenge President Obama’s possible immigration order because the courts have generally refused to entertain lawsuits that seek to force the executive branch to prosecute defendants if it does not wish to.

If President Obama seeks to issue an executive order that allows illegal immigrants to work in the United States with a permit, however, he will come into more direct conflict with Congress in an area — immigration — where the Constitution has long been understood to grant exclusive authority to the legislature. Federal immigration law imposes sanctions on employers who hire unauthorized aliens as workers. Private firms that hire illegal aliens will be exposing themselves to future prosecution, even if President Obama promises not to pursue them for now. These firms may have trouble doing business. Operating in violation of federal law may cause problems for raising money, getting loans, and dealing with other elements of the legal system. Would a bank issue a loan to a construction company that is violation of safety laws and codes, even if the company says that it’s been promised those codes won’t be enforced against them by the local inspector? A work permit order could also expose the whole scheme to challenge in the federal courts, as a plaintiff who is not hired in favor of an illegal alien with an Obama work permit would have the right to sue.

For those interested in a fuller legal discussion of the issue, see my article in Texas Law Review, available for free download here:



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  1. Scarlet Pimpernel Inactive

    Good post. I was hoping that you would weigh in on this question. I am reminded of the old common law maxim: what cannot be done directly, cannot be done indirectly. The Dream Act was not passed. It cannot be enacted by executive fiat, however indirect.

    But didn’t the Sedition Act expire on the day Jefferson took office?

    Jefferson, of course, also thought that the Alien Acts usurped state prerogatives with regard to resident aliens.

    • #1
    • August 14, 2014, at 12:16 PM PDT
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  2. Jules PA Member

    John Yoo: A work permit order could also expose the whole scheme to challenge in the federal courts, as a plaintiff who is not hired in favor of an illegal alien with an Obama work permit would have the right to sue.

     I think scheme is the operative word here. I hope there is a team of lawyers ready to help our American workers sue when/if our Chief Executive rolls out his scheme.

    • #2
    • August 14, 2014, at 1:54 PM PDT
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  3. Ball Diamond Ball Inactive

    IIRC, In Virginia (and presumably other states/CWs), you can be found 100% liable for a collision if you are uninsured, because “you should not have been there to begin with.”
    Foreign intruders should not be defendants at all for their presence, but summarily deported. 

    • #3
    • August 14, 2014, at 2:13 PM PDT
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  4. Man With the Axe Member

    Isn’t the work permit part of this potential order a different animal from the failure to deport?

    Issuing work permits to people not entitled to them by existing law is much more than mere non-enforcement of the law. It is a rewriting of the law at best, and a violation of the law at worst.

    • #4
    • August 14, 2014, at 7:31 PM PDT
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  5. Fake John/Jane Galt Coolidge

    It is getting more and more apparent that the President can do what he wants, when he wants within certain conditions legality aside. Who is going to stop him from breaking the law or make him start following the law? The only thing that can be done, is wait until he is voted out of office. Eventually I expect that we will experience a self-coup and the last trappings of our dear republic will be exposed for the rotten timber it is. All this quibbling about legal or not legal is just bread and circuses for the masses to keep the mob fighting among themselves.

    • #5
    • August 14, 2014, at 9:33 PM PDT
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  6. Copperfield Inactive

    I suspect the president will issue the order, whether or not he believes he has legal standing. It’s terrible policy, but good politics (and, after all, this administration is ALL POLITICS). Even if he is forced to rescind the order by the courts, it will require Republicans to actually file suit and that will provide a spectacle with which Democrats can bludgeon their political opponents. To wit: look at the mean Republicans trying to deny children a decent life… they just hate foreigners (and women and gays and minorities, etc.). 
    Sad thing is, it will probably work.

    • #6
    • August 15, 2014, at 4:05 PM PDT
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