Five points to ponder on the immigration directives

Pres. Obama signs a memorandum (not an executive order) on immigration last week. (AP Photo/Carolyn Kaster)
Presidential power pundit production operations have been running extra shifts lately, following President Obama’s announcement of administrative action on immigration last week. But it turns out that being behind the curve has a few advantages when it comes to synthesis, at least. Here are a few observations on the matter as it continues to develop:
(1) Obama’s speech Thursday night came straight from my introductory lecture on American political culture. (Granted, I stole it myself some years back, from Prof. Mo Fiorina.)  That is, Obama is seeking to ground his action in classic tropes of American identity as a nation of immigrants: to be an American is not a question of birth but faith in the “American creed.”  As Carl Friedrich once put it, “to be an American is an ideal; while to be a Frenchman is a fact.”  Anyone sharing that ideal should be welcome.
So far, so good, for framing the debate?  But the other side has another powerful piece of American political culture on its side: a deep-seated fear of centralized dictatorship. The 18th century anti-Federalists suggested that the American presidency represented, in Edmund Randolph’s words, “the foetus of monarchy”; today’s critics of Obama suggest it is now all grown up. Sen. Ted Cruz’s recent Politico piece not only plays on this, but adds in its accusation of “executive diktat” a useful hint of Nazi oppression to boot.
(2 ) This action is not an “executive order,” despite the funny people at Saturday Night Live and others who should know better (et tu, Michael Gerson?).  Last Friday, Obama issued two presidential memoranda on the subject, telling the departments to figure out a better visa system and creating a “White House Task Force on New Americans.”  Even these are tangential to his address last week. Though details remain sketchy on the White House site (which does however make it easy to share the president’s talking points on social media), it seems likely — as with the DACA policy of 2012 — that the specific changes Obama discussed will be achieved largely via an administrative directive issued by the Department of Homeland Security. The DOJ’s advisory opinion on the action was actually addressed to DHS and addresses its proposed actions, not the president’s.
Thus, this action will not wind up as Executive Order number 13000-something, published in the Federal Register and listed in future statistics counting up, well, executive orders. Which means in turn that the continuing claims that President Obama is not an aggressive user of executive powers because he has issued a relatively small number of executive orders… is wrong. (Yes, this is one of my pet peeves — see here, and here. See too Zachary Goldfarb’s take.)  At a guess, since the Immigration and Nationality Act (INA) delegates power to the department, not to the president, an executive order would not be the appropriate form of action — executive orders are often used to delegate presidential authority to departments, but not the other way around.
(3) Whatever we call it, is it legal?  Key to this question is the proper limit of “prosecutorial discretion,” given that within any legal framework prosecutors have to decide who is to be charged, and when. Both sides have numerous lawyers and scholars who have endorsed or condemned this particular extension on legal grounds. Again, the Justice Department’s version is here. It focuses on the INA’s emphasis on keeping families together, allowing the president to argue that in so doing he is, in fact, faithfully executing the law. Obama’s directive does not change the law, per se (as he has arguably done in other cases); rather, it sets forth who is to be prosecuted first, or rather last. The numbers are big, but then so is the chasm between the law and the resources available to enforce it.
It is true that discretion in immigration cases has a strong jurisprudential pedigree; in 1950 the Supreme Court held that in immigration matters as well as other policy arenas, “flexibility and the adaptation of the congressional policy to infinitely variable conditions constitute the essence of the program.”  (See too the Court’s quite recent holding in Arizona v. US.)  As Justice Rehnquist wrote in the 1985 case Heckler v. Chaney, “an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.”  Lurking in the background of all of this is the president’s pardon power, which can apply to large populations (see, e.g., Alexander Hamilton in Federalist #74, though he is thinking about rebellion rather than repatriation.)
Still, does something legal, if small-bore, become a constitutional “betrayal” at scale?  Are there spillover effects, such that one should worry about future presidents applying the logic of immigration enforcement to other areas of the law? (It’s worth remembering that part of Richard Nixon’s argument in the famous Watergate tapes case was that, as chief prosecutor, he was in a position to decide that prosecutors in his aides’ criminal trials did not need the tapes.)
There are reasons to think Obama’s action is in fact bounded (i.e., without spillover) legally — but the argument once made still becomes part of the presidential toolkit politically. And this is arguably more important, as Matt Dickinson points out here.
(4) Why? Because unilateral action is part of a bargaining process. This is true in at least two ways. One is simply a result of what Obama said: “And to those members of Congress who question my authority…, or question the wisdom of me acting…, I have one answer: Pass a bill.”  But secondly, in acting (whether to pass a bill or something else) Congress does so in a new substantive environment. Alexander Hamilton wrote (defending George Washington’s Neutrality Proclamation), that “the Executive in the exercise of its constitutional powers, may establish an antecedent state of things which ought to weigh in the legislative decisions….”  That “antecedent state” is not impossible to undo but comes with its own new constraints. This is one reason William Howell argues that presidents are almost always better off politically when they take decisive action, even if that action is not obviously legal. Obama has been accused of poisoning the well of bipartisanship in the 114th Congress – his evident take is that everything in that well is already dead.
(5) Which gets us, finally, to the Congressional response. Will there be one? Suggestions have ranged from defunding DHS, to defunding, well, everything (and shutting down the government again), to stalling on confirmations, to filing another lawsuit against the administration. That the House has, finally, sued the president over implementation of the Affordable Care Act was perhaps timed as a shot across the bow. But prosecutorial discretion is something that is very much subject to legislative specification. This is certainly an area where Congress can act — and if only for institutional pride (no small thing in a system of separated institutions sharing powers), it should.