We all know that over the past two years, the President has emphasized that he does not have the power to change the immigration laws on his own. He iterated and reiterated that fact 22 times. Then, in November 2014, he announced that he does have the power waive the immigration laws for some classes of people. Pursuant to his direction, the Department of Homeland Security issued a new “policy” that reads like a statute; it is six single-spaced pages, with sections, subsections, provisos, arbitrary dates, and the notice of its effective date (January 5, 2015).
Immigration, undocumented aliens, and charges of amnesty raise deeply felt issues for many people. I favor increased immigration into the United States. Remember, if American Indians had strict immigration laws, none of us would be here. People want to come here for the same reason that my parents, both immigrants, came here. This country is the land of opportunity and freedom.
My parents did not know the language; they did not know the customs. They were strangers in a strange land. Years later, my mother told me that when she first arrived, she was a little girl well past the age of toilet training, but she was so excited her first night in the United States that she had an accident. When my father fought in WWII, he was proud that the U.S. Army used him as a spy because he spoke Italian, well, like a native. When he was in his 90s, there came a time when I brought him to the VA hospital for a check-up. The doctor looked at his name and asked if he was Italian. He said, in a halting voice, “No, I am an American.” His mind had deteriorated by then. He did not know what year it was; he did not know who was President. He did not know my name. Nevertheless, he knew that he was an American.
In general, I favor reform along the lines that the President has proposed. Whether Congress enacts “comprehensive” immigration reform or moves one-step at a time, the important thing is reform. The government tells us that there are over 11 million undocumented aliens. We will not march 11 million people across our border. Democracies do not engage in mass deportations. I think we also agree on the need to secure our borders. If a 15-year-old child can cross our borders without papers, an al Qaeda operative can surely do the same.
Hence, the issue is not whether one agrees with the President’s goals. (I share them.) The issue is whether it is constitutional for the President, unilaterally, to rewrite our immigration laws and change the status of about 5 million people. If the President can waive any law (by claiming prosecutorial discretion), future Presidents will be able, for example, to rewrite other laws. For example, if the next President does not favor the Affordable Care Act, he or she can simply grant a waiver to all of that law, just as the present President has already granted a waiver to important parts of the Affordable Care Act.
The Office of Legal Counsel, an office within the Department of Justice, functions as the lawyer to the President. It issues “Legal Opinions” to the President and the Executive Branch. The OLC Opinion now argues that the President does have the authority, using “prosecutorial discretion” to make certain changes in the law. President Obama, however, does not seem to rely on that Opinion, although he referred to it in his major speech on the issue. Instead, he said, forthrightly, “what you are not paying attention to is the fact that I just took an action to change the law.” Nor does he argue that he is acting because he does not have the resources to enforce the law. Instead, he argues that he is acting because, “Congress has failed.”
As for resources, shortly after the President’s speech, the Department of Homeland Security announced it was hiring 1,000 new people, some at salaries over $150,000 per year, to implement the President’s new program. That does not sound like the President is facing a shortage of funds. The Government will also be issuing social security cards, and one wonders how that relates to prosecutorial discretion.
However, I would like to focus on a different issue, the OLC Legal Opinion. An Opinion Letter is not a court brief. While a brief can make any nonfrivolous legal argument, an Opinion Letter is supposed to be a more dispassionate and candid analysis of the law. In the past, when the OLC has issued its legal opinions, it has discussed, distinguished, and sometimes withdrawn its prior opinions. Let us turn the OLC Opinion and measure it by that standard—the standard that the OLC uses to measure its own Legal Opinions.
The Office of Legal Counsel, in a Legal Opinion it issued in 1980 made this point quite clear:
The President has no “dispensing power.” If he or his subordinates, acting at his direction, defy an Act of Congress, their action will be condemned if the Act is ultimately upheld. Their own views regarding the legality or desirability of the statute do not suspend its operation and do not immunize their conduct from judicial control. They may not lawfully defy an Act of Congress if the Act is constitutional. (Emphasis added.)
This same Legal Opinion also said that the President had no power to dispense or grant waivers to any civil law that the President did not claim was constitutional. “[T]he 17th century dispute between Parliament and the Stuart kings over the so-called ‘dispensing power’ [is] directly relevant to the questions you have raised. The history of that dispute was well-known to the Framers of the Constitution, and it is clear that they intended to deny our President any discretionary power of the sort that the Stuarts claimed.”
What does the Nov. 19, 2014, OLC Opinion say of its earlier 1980 Opinion? Nothing. It never mentions it.
A decade later, the OLC said that the President does not have carte blanche to refuse to enforce law that is constitutional. This Legal Opinion, titled Issues Raised by Section 102(c)(2) of H.R. 3792, explained:
Finally, we emphasize that this conclusion does not permit the President to determine as a matter of policy discretion which statutes to enforce. The only conclusion here is that he may refuse to enforce a law which he believes is unconstitutional. Obviously, the argument that the President’s obligation to defend the Constitution authorizes him to refuse to enforce an unconstitutional statute does not authorize the President to refuse to enforce a statute he opposes for policy reasons. (Emphasis added.)
What does the Nov. 19, 2014 OLC Opinion say of its own 1990 Opinion? Nothing.
Half a decade later, the OLC issued another Opinion, Constitutional Limitations on Federal Government Participation in Binding Arbitration. The OLC said, “The Supreme Court and the Attorneys General have long interpreted the Take Care Clause as standing for the proposition that the President has no inherent constitutional authority to suspend the enforcement of the laws, particularly of statutes.” (Emphasis added.) In that same Opinion, the OLC said, “The Supreme Court and the Attorneys General have long interpreted the Take Care Clause as standing for the proposition that the President has no inherent constitutional authority to suspend the enforcement of the laws, particularly of statutes.” (Emphasis added.)
What does the Nov. 19, 2014, OLC Opinion say of its own 1995 Legal Opinion? Nothing.
What do the people think of the OLC claim that the President is “prioritizing deportation?” They seem to think that handing out social security cards has little to with prioritizing deportation. Right now, voters by a 60% to 38% margin, object to the President bypassing Congress to change the immigration laws. Over two-thirds are concerned that the President’s executive orders and unilateral actions may be “permanently altering” our system of checks and balances. Among independents, that figure is 72%; for Republicans, it is 90%. Even 42% of Democrats express the same concern. They are right to be concerned.