Libertarian presidential candidate Gary Johnson has some explaining to do. The former New Mexico governor told Politico he was okay with President Barack Obama’s executive order of immigration.
[Politico’s Glenn] THRUSH: How about Obama’s executive order, which was decried as being a great constitutional violation by the Republicans, Obama’s executive order on immigration. Did you consider that to be a violation or did you consider that a reasonable use of targeted executive power?
MR. JOHNSON: I saw it as a reasonable use, challenging Congress to action. And an untold story with regard to Obama and immigration is he’s broken up 3 million families. He has deported 3 million heads of households that have gone back to Mexico and their families have remained in the United States.
His comments have caused several people, including AP, to write off Johnson as a legitimate option for their vote (one friend went as far to say Johnson was using “weasel words.”). Johnson later told Fox News yesterday he agreed with the executive orders, but wished Congress would have acted first. The only problem is neither Johnson nor Thrush bothered to ask which Obama immigration executive order they were referring to. My guess is it’s probably the 2014 DAPA order, but it could also be the 2012 DACA order. There’s actually a difference between the two, with one of them (DACA) definitely being unconstitutional, while the other (DAPA) is up for debate.
It all boils down to whether or not the president has the authority to issue executive orders in the first place. Todd Gaziano wrote at Heritage Foundation in 2001 there were certain areas where the president could issue executive orders, including on law enforcement (emphasis mine).
Chief Law Enforcement Officer. The President has the sole constitutional obligation to “take care that the laws be faithfully executed,” and this grants him broad discretion over federal law enforcement decisions. He has not only the power, but also the responsibility to see that the Constitution and laws are interpreted correctly. In addition, the President has absolute prosecutorial discretion in declining to bring criminal indictments. As in the exercise of any other constitutional power, one may argue that a particular President is “abusing his discretion,” but even in such a case, he cannot be compelled to prosecute any criminal charges.
Gaziano’s reasoning comes from Article II, Section 3 of the Constitution which says the president, “shall take Care that the Laws be faithfully executed.” The problem is the Constitution doesn’t explain what the statement means. For all we know, the Founders simply wanted to make sure the President didn’t tell someone in his administration to break the law. If that’s the case, then the President has no power to issue executive orders, except for perhaps telling federal workers when they can have the day off.
DACA is unconstitutional because Obama created rules saying which illegal immigrants to get work permits and which can’t. This violates the law because Congress has to sign off on a bill first, before the President signs it. Obviously, this is Constitution 101 and you’d think a so-called “constitutional scholar” would realize this, let alone follow it. The question is whether DACA would have been considered constitutional if Obama had stopped at saying certain immigrants wouldn’t be deported. This is something George W. Bush did several times via executive order and internal memos, and Ronald Reagan and George H.W. Bush may have done depending on the source.
This is where the argument over DAPA starts. If Obama is acting as Chief Law Enforcement Officer of the United States, then it’s arguable DAPA is completely legal. Ilya Somin (from Volokh Conspiracy) has this view, arguing at Reason it was well within “the scope of executive authority” constitutional.
At the very least, there is no meaningful difference between a de facto policy of exempting a large category of violations from prosecution (as with marijuana possession on campus) and a more explicit, formal decision to the same effect. If anything, the latter is preferable because it is more transparent and more readily subject to public scrutiny and debate. Because the exemption of campus marijuana users from prosecution has arisen gradually, without any clear formal decision, it has not generated nearly as much public scrutiny and debate as Obama’s order—despite the fact that it lets far more lawbreakers get away with their offenses.
Somin also believes immigration laws may be unconstitutional, in general, because Article I of the Constitution doesn’t “include any general power to restrict migration.” This isn’t shared by Cato’s Ilya Shapiro, who thinks the entire federal government is ignoring its responsibility. Via Reason:
This immigration non-policy serves nobody’s interest, except perhaps lawyers and bureaucrats. And yet Congress has shamelessly refused to fix it.
This unfortunate circumstance, however, doesn’t give the executive branch the power to rewrite the law itself. Yet in November 2014, President Obama did exactly that when he unveiled DAPA, which officially defers deportations and grants temporary legal status to more than four million illegal aliens, entitling them to work authorizations and other benefits…
I’ve written before that this unilateral action is good policy, bad law, and terrible precedent. To be clear, Cato scholars have long supported immigration reform that would provide relief to the aliens protected by DAPA—among many other classes of people—but it’s not for the president to make such legislative changes alone.
It’s an interesting debate, especially when one looks into what the actual phrases in the Constitution mean. I probably tend to lean more towards Shapiro than Somin and Gaziano in this debate because of the queasiness I have with executive orders being constitutional. But I can also see where Somin and Gaziano (and possibly Johnson) are coming from, when it comes to whether or not the President can tell federal law enforcement to not enforce certain laws because of his standing as Chief Law Enforcement Officer. Johnson will have to answer which immigration executive order he’s talking about and give a better policy explanation than “challenging Congress to action.” At least Johnson did point out how many people the Obama Administration has deported (which is 23% higher than George W. Bush). That is something people should remember.