The Duty to Enforce the Law

Stuck in traffic last fall as a “No Kings” rally in Chicago brought our car to a standstill, I listened to a familiar charge: President Donald Trump was acting like an unrestrained monarch. Many signs and chants particularly complained about his immigration policy: his detaining and deporting immigrants who had no legal right to remain in the country. But whatever one thinks of the soundness of our immigration laws, it is clear that they are, indeed, laws. What struck me was how strange it was that enforcing a duly enacted law can plausibly be confused with royal prerogative.

Enforcing immigration law is not an act of political discretion on the part of a king but an obligation of a republican executive simply implementing congressional directives. Such legal restrictions may be debatable, but it is up to Congress to change them. And it is likely that some of Trump’s agents are not complying with constitutional requirements in rounding up illegal immigrants, but that would be a complaint primarily about methods, not their objectives.

Far from reflecting a regal prerogative, the enforcement posture now inspiring such protests was partly a response to an earlier presidential claim of one. President Barack Obama refused to enforce a substantial part of the immigration law. First, he bestowed “lawful presence” on children who were in the country illegally and then extended these rights to their parents. Indeed, lawful presence went beyond a mere failure to enforce and granted permission to work in the country. Congress has consistently failed to pass laws incorporating these judgments despite their being proposed on many occasions. Texas v. United States indeed dismissed a challenge to the Biden administration’s deportation priorities. But the decision did not validate the Obama administration’s DACA or DAPA programs. While DACA and DAPA affirmatively conferred lawful presence and eligibility for benefits on large, predefined classes, the Biden guidance challenged in Texas largely involved prioritizing whom to arrest and remove. The Court emphasized that such prioritization reflects necessary enforcement triage discretion given resource constraints. But the majority underscored limits on discretion, warning against executive “abdication” and distinguishing non-enforcement from programs that alter legal status that were at the core of the Obama program.

As it happens, the Constitution specifically memorializes the republic’s prohibition of the prerogative of abdication. It requires that the president “take Care that the Laws be faithfully executed”—a direct repudiation of executive dispensing power. Thus, the Clause was designed at least in part to deny the president the so-called dispensing power by which English monarchs had sometimes claimed the authority to refuse to enforce the laws of Parliament.