In response to a piece I wrote for the New Republic criticizing Douthat’s arguments, Reihan Salam, writing in the National Review Online, claimed that the president must use the resources that Congress gives him in order to advance Congress’ intent. We know that Congress doesn’t want the president to stop deportation proceedings because it has voted down bills that would offer paths to citizenship. But there is no such principle in American law. Because Congress passes more laws than can be enforced, while giving the executive branch (necessarily) limited resources to enforce them, the president has no choice but to defy Congress’ intent. At least, if you imagine that Congress really wants all those laws enforced to the hilt, which is not really true.
Salam also thinks that there is something wrong with announcing in advance that the government isn’t planning to enforce the law against certain people. Cities do not announce that they will not enforce jaywalking laws; they just don’t do it. Salam thinks that Obama is crossing a line by declaring that he won’t enforce all the immigration laws rather than (like President George W. Bush) allowing illegal immigrants to work and stay in the country without saying so.
This argument is wrong. While it is unusual for officials to announce in advance that certain laws will not be enforced, it happens. Some cities, for example, have announced that they will not enforce laws against possession of marijuana under certain conditions. The Brooklyn district attorney made just such an announcement last month. It is better for people to know the government’s enforcement priorities so that they can plan their lives around them, than to be forced to guess (or to pay high fees to lawyers for the information). Obama’s reportedly proposed action would advance the rule of law over the Bush (and pre-Bush) baseline of silent nonenforcement.
Last week, Salam argued in Slate that another problem with the president’s immigration plan is that its justification is congressional intransigence. The president has said that he must act because Congress has failed to act. But “gridlock is good,” says Salam. Congress is implementing the will of the people by not doing anything at all.
The problem with this argument is that the president has never offered congressional intransigence as a legal reason for his actions. (I did, but I don’t have his ear.) Obama’s legal rationale is the one I just laid out. The president offered congressional intransigence as a political reason for his actions
Salam gets his argument backward. He wants the president to take account of Congress’ stalemate. But Congress’ decision not to act is just that—it’s not a new law. Thus, the president has properly relied on existing law, which takes us back, once again, to his authority to deport, not deport, or do anything in between. Obama can’t infer anything from Congress’ failure to act. The noisy complaints of a bunch of House Republicans possess no legal status whatsoever.
If President Obama is a latter-day Caesar, intent on overthrowing the Republic and establishing a dictatorship, he has a ways to go. It’s wishful thinking, on the part of Obama’s critics, to argue that it’s unconstitutional for the president to shift immigration policy by changing enforcement priorities. But as the original Caesar said, “Men willingly believe what they wish to be true.”
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