The Imperial President of Arizona
The Supreme Court’s immigration ruling dramatically expanded executive power.
Viewed this way, SB 1070 seems harmless. But this is the civics-class version of the structure of government. It is not how our government actually works. In the real world, Congress sets only the outer limits of executive power, like a board of directors giving general marching orders to the CEO of a corporation. The president, like the CEO, makes most of the decisions as to policy as well as to enforcement. Congress can prevent the president from doing certain things by refusing to grant him authorization to do them. But Congress generally cannot force the president to enforce a statute if he does not want to. The president can choose not to enforce the immigration law; he can also choose not to enforce federal criminal law, or antitrust law, or food and drug law. Some liberal commentators reacted with alarm to President Obama’s decision not to enforce immigration law by wondering whether a President Mitt Romney could decide not to enforce the Affordable Care Act (assuming the Supreme Court upholds it later this week). The answer is yes. Subject to certain vague limits that are rarely of importance, the president has the constitutional power not to enforce the law—to direct agencies to sit on their hands.
Presidents have always exercised this negative power, and they do so in order to set policy within the vast range of discretion that Congress leaves them. But they tend to do so in ways that people do not notice because they prefer shifting enforcement priorities to offending powerful interests by refusing to enforce the law altogether. Thus, Republican presidents tend to tell the Justice Department to enforce antitrust law less vigorously than Democratic presidents do, and the same point can be made about a whole range of regulatory law from environmental law to consumer protection. The only thing notable about President Obama’s decision was how explicit he made it. In the end, his policy is not very different from that of President Bush, who also directed the immigration agencies to focus on criminals rather than on law-abiding youngsters.
The reason that the president has so much discretion—and, again, not just over immigration law but over all areas of federal law—is that the distinction between making policy through legislation and enforcement is an artificial one. The executive can make policy by choosing how to enforce, and Congress is too weak and disorganized to countermand the president’s enforcement decisions. Over the years, we’ve acquiesced in a shift of power from Congress to the executive because only the executive can get things done. Rather than think of Congress as a policy-setting body, we’re starting to think of it as like the judiciary: It protects people’s rights and well-being by setting certain limits for presidential policymaking.
In this light, the difference between Justice Kennedy’s opinion and Justice Scalia’s dissent is that Justice Kennedy sees SB 1070 as a problematic conflict between the states and the president, while Scalia sees it as a nonexistent conflict between the states and Congress. For Scalia, because Arizona law does not contradict or even create real tension with federal law, Arizona should win. For Kennedy, Arizona law loses because it conflicts with the president’s policy. Scalia’s view is rooted in a nostalgic view of the U.S. Constitution that long ago ceased to reflect reality. Kennedy’s view reflects the structure of our government as it is—one in which, like it or not, the president calls the shots and the other parts of government acquiesce.
Eric Posner, a professor at the University of Chicago Law School, is a co-author of The Executive Unbound: After the Madisonian Republic and Climate Change Justice.