The Constitutional Authority for Executive Orders on Immigration Is Clear

Eric Posner, a professor at the University of Chicago Law School, is the co-author of "The Executive Unbound."

Updated December 16, 2014, 3:30 PM

Critics of the plan the president is reported to be considering argue that the Constitution obliges him to “take care that the laws be faithfully executed,” an obligation that seems to give the lawmaker, Congress, the primary authority to set policy. They say that refusing to enforce immigration law against millions of illegal immigrants violates that constitutional duty.

Executive power has always included the power to allocate resources among enforcement efforts. The power has grown over the years.

Yet the Constitution also gives the president “executive power,” which has always been understood to include the discretionary power to allocate resources among enforcement efforts. The significance of this power has grown over the last century, as Congress has created vast regulatory agencies and given the president control over them.

Congress typically appropriates money for regulators, gives the president some vague guidelines and enacts far more laws than he could possibly enforce, and then allows him to set enforcement priorities as he sees fit. That’s why different administrations can pursue such different policies from each other without getting Congress’s permission first. The Reagan administration came to power promising to deregulate the economy, which often meant not enforcing the law, whether it was antitrust, environmental or financial.

If, under the Constitution, the president must enforce much of the law but need not enforce all of it, where should the line be drawn? It might be surprising that after two centuries of constitutional experience, we don’t know the answer. Probably the reason is that most of the time, the president’s nonenforcement decisions are not controversial. Every day, an executive branch official decides to drop an investigation, or not to prosecute a case, because resources are scarce and the harm caused by a particular legal violation does not seem serious. We don’t object because that’s a sensible thing to do.

And the sensible thing to do in the area of immigration law is to bring removal proceedings against the most serious violators — typically, criminals — while leaving otherwise law-abiding noncitizens alone. Given that Congress has not appropriated nearly enough money to deport 10 million or more people, this type of priority-setting is unavoidable, and not merely wise. Indeed, the president is just following in the footsteps of his predecessors, who also focused removal efforts on dangerous aliens. Congress has acquiesced in this practice for years. The president’s discretion over immigration is deeply interwoven in our law. As the Supreme Court recognized just two years ago, in the course of summarizing the statutory scheme: “A principal feature of the removal system is the broad discretion exercised by immigration officials.”

The only difference between the president and his predecessors is that the president has openly declared the de facto policy of his predecessors. We might disagree about whether this move is wise, but it’s not a constitutional violation.