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MEMBERS ONLY: President Obama's Executive Action On Immigration Is Legal, Popular, And Troubling

It has been four days since President Obama announced his promised executive action on immigration. While legally sound and generally a good idea, Obama's use of executive action is still problematic, says Banter White House reporter Tommy Christopher.

It has been four days since President Obama announced his promised executive action on immigration, and the sky has not fallen. Legally speaking, the President seems to be in the clear, and if a couple of early polls are any indication, the move is immensely popular. In a new Latino Decisions survey of registered Latino voters nationwide, 89% approved of the President's actions, including 76% of Latino Republicans. Even more to the point for a GOP that wants not to get thrashed in the 2016 election, almost two-thirds said that they have a close friend or family member who is an undocumented immigrant.

Another poll, by former Hillary Clinton campaign strategist Geoff Garin's Hart Research. shows that among all likely 2016 voters, 67% had a favorable view of the President's immigration enforcement priorities, including 51% of Republicans. The question in that survey was a bit push-polly, but so far, the reaction seems good.

The Justice Department has released a 33-page memo detailing the legal foundation for the President's actions, which figure to protect as many as 4.9 million undocumented immigrants from deportations. That memo cites a raft of statutes that recognize "deferred action" dating back to 1975, and precedents set by Presidents Ronald Reagan and George H.W. Bush. It also addresses the limit of prosecutorial discretion:

Immigration officials’ discretion in enforcing the laws is not, however, unlimited. Limits on enforcement discretion are both implicit in, and fundamental to, the Constitution’s allocation of governmental powers between the two political branches. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587–88 (1952). These limits, however, are not clearly defined. The open-ended nature of the inquiry under the Take Care Clause—whether a particular exercise of discretion is “faithful[]” to the law enacted by Congress—does not lend itself easily to the application of set formulas or bright-line rules. And because the exercise of enforcement discretion generally is not subject to judicial review, see Chaney, 470 U.S. at 831–33, neither the Supreme Court nor the lower federal courts have squarely addressed its constitutional bounds.

Rather, the political branches have addressed the proper allocation of enforcement authority through the political process. As the Court noted in Chaney, Congress “may limit an agency’s exercise of enforcement power if it wishes, either by setting substantive priorities, or by otherwise circumscribing an agency’s power to discriminate among issues or cases it will pursue.” Id. at 833. The history of immigration policy illustrates this principle: Since the INA was enacted, the Executive Branch has on numerous occasions exercised discretion to extend various forms of immigration relief to categories of aliens for humanitarian, foreign policy, and other reasons.

When Congress has been dissatisfied with Executive action, it has responded, as Chaney suggests, by enacting legislation to limit the Executive’s discretion in enforcing the immigration laws.

Simply put, if Congress doesn't like it, they can, as the President said, "Pass a bill." Critics of the President's action citeYoungstown to argue that the President's actions are unconstitutional because the action was "incompatible with the expressed or implied will of Congress," but even in that regard, the Senate passed a bill, and the House did not vote on it at all because the Speaker of the House refused to bring it up for a vote. The concurring opinion in the Youngstown decision seems to cover that scenario in the President's favor:

When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility.

But if the President is on sound legal and political footing, the principle behind his sweeping action has a double edge that is more than a little troubling. If presidential authority can be used to enact something that's a big, good idea, then what's to stop it from enabling a big, bad idea? In an interview for ABC News' This Week, George Stephanopoulos asked the President about just such a scenario, in which a future Republican president (we'll call him Ritt Momney) decides to use a little prosecutorial discretion on tax enforcement. The President made an excellent substantive argument against such an action, but not much of a legal one:

STEPHANOPOULOS: So you don't think it'd be legitimate for a future president to make that argument?

OBAMA: With respect to taxes? Absolutely not. But what is true -- what is true today is we don't audit every single person, but we still expect that people are going to go ahead and follow the law. And we have limited resources, we have to make sure that we prioritize those folks who are most dangerous and we should acknowledge what everybody has already acknowledged through their actions -- and Congress acknowledges through their budget -- which is we're not in the business of deporting millions of people or breaking up families.

At Monday's White House briefing, Press Secretary Josh Earnest was asked a similar question, and made a more detailed substantive case about the differences between the two examples, but even when pressed, couldn't really explain what would stop a future president from using this precedent in that fashion.

Ed Henry: "How do you know this is not a precedent on laws across the books?"

Josh Earnest: "I guess that's a question you could have asked President Reagan after he announced his executive action in terms of using prosecutorial discretion to reform the immigration laws."

Yes, that is an excellent point, because like so many other things, no one seems to mind presidents doing all kinds of things until it's President Obama. However, it remains unclear what would actually stop a future president from enacting some big, horrible idea under this same rationale. Forget taxes, what if President Momney decided to use his authority on immigration in the opposite direction, and told his DHS to round up everybody? As House Republicans have pointed out, defunding Obama's immigration actions is impossible because USCIS is funded through fees. Without a House majority and a Senate supermajority, Democrats would have to just ride out the Momney presidency deporting everyone.

The problem here, though, isn't executive overreach, it is Congressional underreach. Just as they have done with the war in Syria, Congress has completely abdicated its role as a check on the presidency, alternately through cowardice and dysfunction. Unfortunately, there's no real end in sight to either of those problems, so for now, we've just got to make sure we always have a president who does the right thing.