The Imperial President of Arizona
The Supreme Court’s immigration ruling dramatically expanded executive power.
Photograph by Jewel Samad/Getty Images.
Arizona v. United States, Monday’s Supreme Court opinion striking down most of an Arizona law that strengthened immigration enforcement, is largely being seen through the lens of federalism. On this view, the Supreme Court has confirmed that the national government takes the lead on immigration policy and the states must fall into line. In fact, the ruling matters more for what it says about the advance of executive power in the United States, especially in connection with President Obama’s decision not to enforce immigration laws against certain young illegal immigrants. The imperial presidency, much criticized by Democrats during the Bush administration and by Republicans during the current administration for its dominance over security and war policy, now prevails in the immigration arena as well.
In 2010, Arizona enacted a law, SB 1070, that required state police officers to check the immigration status of a person whom they stop, detain, or arrest—and to arrest anyone who has committed a crime that means he can be deported under federal law. The Arizona law also made two other federal immigration violations crimes under state law. The court struck down all but the first of these provisions—leaving in place only the status checking part—essentially on the grounds that the rest of Arizona’s plans conflicted with the federal scheme for regulating immigration. Under the Supremacy Clause of the U.S. Constitution, state law that conflicts with federal law is invalid.
Arizona argued, unsuccessfully for the most part, that its laws did not conflict with federal law but enhanced it. The state reasoned that the purpose of federal immigration law is to regulate the flow of migrants and foreign workers. When people enter the United States in violation of the rules, the U.S. government is supposed to detain and remove them. But the U.S. government failed to stanch the flow into Arizona because of limited resources, and possibly political pressure from Hispanic groups. Arizona, bearing much of the cost of illegal immigration, wanted stronger enforcement for itself.
The best way to understand Arizona’s argument is to look at how each of SB 1070’s four provisions would apparently strengthen the enforcement of U.S. immigration law. When state police officers arrest someone, they do not always check that person’s immigration status by contacting Immigration and Customs Enforcement, the federal immigration enforcement agency. Arizona law requires that they do so. This makes it easier for ICE to ask the officer to detain a person wanted by the U.S. government for an immigration violation.
Similarly, if state police officers may arrest a person who has violated immigration law, ICE is spared some effort—in this case, the effort of arresting that person. The state police can simply turn that person over to ICE, and if ICE chooses not to deport or prosecute the person, it is free to let him go.
Finally, the two provisions that make state crimes of federal immigration violations—failing to register and working without papers—just go a step farther, by enabling state authorities not only to arrest and detain, but also potentially to imprison people who have violated immigration law. This, too, spares federal authorities resources that can then go elsewhere.
All of this sounds like fair game for the states. But it isn’t. Justice Anthony Kennedy, writing for the majority, rejected the whole idea that a state law or enforcement effort that does no more than strengthen a federal law is constitutional. Why did Arizona misfire? Because it overlooked the role of the president’s discretion in enforcing the law in the first place.
To understand the significance of this point, consider President Obama’s decision a few weeks ago to stop deporting a large group of young illegal immigrants who came to this country as children and are either students or high school graduates or have been honorably discharged from the U.S. military. To make this happen, President Obama drew on his executive power, which generally permits him to decide how to allocate resources when enforcing the law. The president did not repeal a law; he simply decided not to enforce it with respect to a certain class of people. And he did so for reasons of policy: He believes that immigration enforcement resources should be used against criminals and other dangerous people, not against hardworking youngsters.
Justice Scalia brought up Obama’s decision in his dissent even though it was not at issue in this case. He did so to point out that the real conflict in Arizona v. United States was not between Arizona law and federal law. It was between Arizona law and the president’s policy of not enforcing, or selectively enforcing, federal law. After all, Arizona state troopers enforcing Arizona law would have no authority to distinguish between illegal aliens who are young and educated and illegal aliens who are dangerous criminals. Both groups would be checked, detained, arrested, and jailed—and this conflicts with President Obama’s policy, not with the federal immigration statute.
Justice Scalia argues that the Supremacy Clause says nothing about the president’s policies taking precedence over state law. It refers only to federal law, passed by Congress. On what grounds, then, could Justice Kennedy allow the president’s enforcement priorities to take precedence over a state’s decision to protect its sovereignty by enforcing the federal immigration law? After all, in theory Congress sets policy and passes laws; the executive is merely Congress’ agent of enforcement.
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.