Wipe away your tears, Republicans. President Barack Obama’s deferral of enforcement against several million undocumented immigrants is a short-term defeat for the GOP that you will turn to your advantage. It strengthens executive power, true, but in a way that will benefit Republican presidents much more than Democratic ones.
The deferred action program does not violate the Constitution. But it may modify political norms that control what the president can do. When presidents act, they typically invoke these norms, arguing that they can do X because a predecessor did X first. Obama’s defenders thus argued that Republicans shouldn’t complain about his deferred-action plan because presidents George H.W. Bush and Ronald Reagan also deferred action against undocumented immigrants. Critics of Obama’s action worry that it establishes a broader political norm that enables the president to achieve, through non-enforcement, ends unrelated to immigration.
What might these ends be? Imagine a President Rand Paul entering office in 2017. An enormous regulatory structure will greet him, nearly all of it the creature of liberal policy-making going back to the New Deal, and it’s his to defer action on. Financial regulation required by the hated Dodd-Frank act, health regulation under the even more hated Obamacare, climate regulation despised by the coal industry, antitrust regulation opposed by big business—in all cases, President Paul will be able to argue that he can follow in President Obama’s footsteps and “defer action.”
To be sure, President Paul will not enjoy complete freedom to defer enforcement. The Constitution’s take-care clause would block him from disregarding the law entirely. Legal precedent establishes that he can’t refuse to spend congressional appropriations on enforcement. Many regulatory agencies enjoy independence from the executive, and private parties can sometimes force agencies to act. The courts say that the executive must comply with specific statutory mandates. And immigration law, as I have argued, falls uniquely under executive authority, as a matter of history and tradition. Still, because most of the regulatory statutes contain pockets of vagueness, and the immigration-law arguments bleed over to those other areas of the law, President Paul’s power to lift regulatory burdens through non-enforcement will be extensive.
The point is not just that Republican presidents can do what Obama has done. It is that enforcement discretion creates an advantage for Republicans—it favors conservative governance and hurts liberal governance. The reason for this asymmetric effect is that the great bulk of federal law is liberal economic regulation, not conservative morals regulation. A conservative president can refuse to enforce laws, but a liberal president can’t enforce laws that don’t exist. While a President Rand could gut the regulatory state, the opportunities for a President Hillary Clinton to advance liberalism through non-enforcement are much less fecund.
Consider how a future Democratic president could wield the non-enforcement power. Immigration is behind us; what other statutes do Democrats not want to enforce? The major conservative legislative victories of the 1980s and 1990s were deregulatory statutes, like the law that repealed Glass-Steagall in 1999. A liberal president cannot conjure a repealed statute back into existence by refusing to enforce the statute that repealed it. George W. Bush’s legislative record is rather thin. No Child Left Behind (which Obama has in fact been under-enforcing) is small potatoes, and the anti-terrorism laws like the Patriot Act don’t require the president to do anything at all (they give him permissions only). The federal drug laws round out conservative legislation that a liberal president might prefer not to enforce. This is pretty slim pickings for a Democratic president intent on not enforcing conservative legislation out of existence.
Conservatives—especially libertarian conservatives—don’t like laws, especially federal regulatory laws that go beyond the state-law regime of criminal law and property, contract, and tort law. They should rejoice at the strengthening political consensus, if that is what it is, that the executive can refuse to enforce laws he doesn’t like. And social conservatives aren’t hurt by this new norm. The morals laws they champion are almost always enacted by state governments, not the federal government—so a future Democratic president will not have much opportunity to fail to enforce them.
We know this because we have been there. In 1981, Ronald Reagan entered the presidency vowing to deregulate the economy. But because the House was controlled by Democrats, Reagan could not persuade Congress to repeal as many regulatory statutes as he wanted to.
So Reagan sought to undermine the regulatory system itself. He forced agencies to show proposed regulations to the Office of Management and Budget, a White House agency, and empowered the OMB to block or delay regulations that did not satisfy a cost-benefit test. Although OMB was told to obey the law, liberals howled that the effect of the cost-benefit test was to undercut regulation since no such test existed in the statutes under which agencies issued regulations. And when the Reagan administration could not change or repeal the rules, it cut back on enforcement. The Justice Department famously reduced enforcement of the antitrust and civil rights laws. More howls ensued.
But the Reagan administration exhausted itself fighting against political distrust of an imperial executive and overreached by trying to deregulate in areas—like the environment—that people cared about. Republican successors—the two Bushes—did not pursue deregulation through non-enforcement with such zeal. Obama’s deferral actions, by further normalizing non-enforcement, may reinvigorate the Reagan-era push for deregulation through the executive branch.
The only people who may have recognized the damage that the president’s action could do to the regulatory state are the law gnomes in the Justice Department’s Office of Legal Counsel. The OLC opinion starts out by invoking the tradition of enforcement discretion, and noting the long history of executive discretion in the area of immigration. It could have stopped there. Instead the OLC goes to great lengths to argue that the deferred action program is legal because it advances the “policies” and “priorities” contained in the immigration law. Provisions in the prolix immigration code indicate that Congress doesn’t want families to be needlessly torn apart. That justifies non-enforcement against unauthorized aliens who are parents of American citizens or lawful permanent residents.
The OLC continues that the president cannot defer action against parents of unauthorized aliens who have themselves benefited from deferred action, because Congress’s “priorities” do not include those families. The problem with this argument is that if you can find in the immigration law a general policy of helping families, there is no reason to draw the line between families that include an American citizen and families that do not. As Adam Cox and Cristina Rodriguez, two immigration law experts, explain:
The INA [the immigration law] amounts to a massive code that incorporates an accretion of myriad amendments over six decades. Its very structure leaves us skeptical that congressional priorities can be cleanly or coherently identified through a careful, lawyerly exercise of inter-textual fidelity. And the effort to do so moves the argument over executive discretion onto a plane that we think is unlikely to be very fruitful. Does the fact that the INA leaves out a number of ways to preserve family unity mean that additional efforts to protect families are inconsistent with the statute? Or that Congress did not contemplate those additional strategies?
It’s clear that the OLC opinion is a fudge—an attempt to ground the idea of deferred action in something related to the statute when in fact it is a pure exercise of prosecutorial discretion based on the executive’s view of proper enforcement goals. The OLC, or its masters in the White House, may well be worried that, unless they can lay out clear limits on enforcement discretion, Republicans will use the OLC opinion to justify deregulation when they control the presidency. If so, they are right to be worried. But they can’t control the meaning of a political precedent by invoking the law, especially in such a facile way.
After licking their wounds, Republicans will realize that President Obama’s deferred enforcement action could be a bomb planted at the heart of the regulatory state. It will take only a Republican president to light the fuse.