We will soon see what, exactly, the president’s executive order on immigration looks like. The various accounts of it that have been floated over the last few months, however, give some sense of what it will be like, and also raise some serious concerns about it. Probably it will involve the president’s decision to defer enforcement of the law for specified people–an expansion of what he has already done in the case of people who were brought to to the country illegally when they were children.
The defenders of the president hold that he has a wide discretion in how to enforce the law. They are correct, but that does not settle the question. There must be a point at which the president exercises too much discretion. Otherwise we make nonsense out of the president’s constitutional obligation to “take care that the laws be faithfully executed.” This expression must mean that the president is to try to be faithful to what the law intends, not to whatever he happens to think is for the best.
The question then arises: would President Obama be taking care that the laws be faithfully executed by issuing an executive order such as we have been led to believe he will issue? To me, it seems that the answer to this question is “no.”
Obviously no president can ensure that the law is enforced in all cases. No president has sufficient resources for that, and so that would be a silly standard of faithful execution of the laws. He has to make choices. Combining that need to make choices–which is the basis of his legitimate discretion–with the constitutional duty to see to the faithful execution of the laws would seem to suggest that the president needs to be taking care that the laws are being executed to the extent that they can be, to the extent that is realistically possible. I think that nobody pretends any longer that this is what they president is doing with this order. In the past there were some attempts to claim that by using such discretion he would be saving resources for other aspects of immigration enforcement, but that argument seems to have been dropped entirely. Everybody is now talking as if the president is going to do this simply because he thinks it would be the better policy. But that is certainly not taking care that the laws be faithfully executed.
The real giveaway here is the president’s argument that he is forced to do this by Congress’s refusal to act to change the existing immigration laws. That is as much as an admission that the existing laws impose on him a policy that he just does not want to execute. But that, again, is not taking care that the laws be faithfully executed.
Liberals ought to be as concerned about this as conservatives are. They should consider the precedent that it sets, and how it might be used by a future president whose policy preferences are very different from President Obama’s. If the president’s immigration order is to stand, then what will stop, say, a Republican president from issuing an executive order deferring enforcement of whatever provisions of the health care law he or she thinks are too burdensome? It would be the exact same thing.