Symposium: Constitutional limits of presidential power – changing the law or enforcing it

Jay Sekulow is Chief Counsel of the American Center for Law and Justice (ACLJ), which focuses on constitutional law. The ACLJ is planning to file an amicus brief in United States v. Texas on behalf of members of Congress and thousands of Americans.

Impatient presidents don’t get to rewrite the law when they don’t get their way. This is foundational to our country’s entire system of governance. The Supreme Court recently granted the president’s petition for certiorari in United States v. Texas, a case taking this issue head on. Yes, this case is of great national importance, as the president contends, but for reasons different than those he advanced. It’s not about immigration policy. It’s about the Constitution and fundamental pillars of our republic – the separation of powers – intended to protect our liberties and freedoms (including those of people lawfully entering the United States).

On numerous occasions, President Barack Obama publicly proclaimed that he took executive action to “change the law” – specifically, to categorically confer “lawful presence” on at least 4.3 million illegal aliens. To the president, his constitutional responsibility to “take Care that the Laws be faithfully executed” brings with it the power to change the law. He’s wrong.

President Obama’s actions are unconstitutional, violating the separation of powers and exceeding his considerable prosecutorial discretion. Congress’s refusal to enact the president’s preferred policies does not provide a lawful pretext for violating our nation’s vital restraints on executive authority. The president’s action is not moored to his constitutional authority, either express or implied, nor can it be moored to a delegation of statutory authority.

That is what I told the House Judiciary Committee in 2014 less than two weeks after the president issued his Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA). That is what we at the American Center for Law and Justice (ACLJ) told the lower courts when we filed two amicus briefs in the district court and an amicus brief in the Fifth Circuit on behalf of 113 Members of Congress (twenty-five United States Senators and eighty-eight Members of the House). And that is the real issue that is before the Supreme Court in this case.

Twenty-six states stood against the president’s action and filed suit to block the executive overreach. The district court granted the states’ request for a preliminary injunction, correctly finding that President Obama “is not just rewriting the laws, he is creating them from scratch.” President Obama immediately appealed to the Fifth Circuit, where he lost again.

The courts below were certainly correct: DAPA violates the Administrative Procedure Act (APA). But, more critically, it violates the Constitution. In fact, the underlying reasons DAPA violates the APA illustrate precisely why it is unconstitutional. While the lower courts, understandably, limited their holdings to the APA violation, the rationale underlying the states’ lawsuit and the district court and Fifth Circuit’s rulings – the reason the APA is implicated at all – is that the president attempted to unilaterally “change the law” governing aliens and the states under the guise of discretionary executive action. In other words, the president violated the constitutional doctrines of separation of powers and federalism in order to accomplish that which he could not through the legitimate constitutional system. And now the Supreme Court will consider the constitutionality of his actions: “Whether the Guidance violates the Take Care Clause of the Constitution, Art. II, §3.”

The Constitution vests in Congress the exclusive authority to make law and set immigration policies. As I testified to Congress: “Few enumerated powers are more fundamental to the sovereignty of the United States than the control of the ingress and egress of aliens.” The Supreme Court has acknowledged Congress’s exclusive authority over naturalization, recognized that Congress has plenary power over immigration, and recognized that it is in Congress’s exclusive authority to dictate the policy pertaining to aliens’ ability to enter and remain in the United States.

Congress has created a comprehensive immigration scheme – which expresses its desired policy as to classes of immigrants – but the class identified by the Department of Homeland Security’s directive for categorical relief is unsupported by this scheme. Moreover, the DHS directive, by the president’s admission, changes the law and sets a new policy, exceeding the executive’s constitutional authority and disrupting the delicate balance of powers.

It is undisputed that, through DAPA, “an individual is permitted to be lawfully present in the United States” – 4.3 million individuals according to the district court. The newfound status would bring eligibility for public benefits like Social Security and Medicare, and work authorizations, Social Security numbers, and earned income tax credits would follow. So, too, would driver’s licenses, at the states’ expense. There can be no doubt that DAPA substantively alters immigration policy. The president was entirely correct when he said he “changed the law.”

The administration argues its ultra vires lawmaking falls within its prosecutorial discretion – an agency’s ability to refuse to institute investigative or enforcement proceedings, unless Congress has indicated otherwise. Presidents certainly have prosecutorial discretion. But, as I testified before Congress and we argued in our brief, prosecutorial discretion, though broad, has its limits, constrained ultimately by Article II, Section 3, of the Constitution. Prosecutorial discretion ordinarily requires a case-by-case determination whether the individual should be subject to an enforcement action, rather than categorical exemptions. The Supreme Court has warned that the conscious and express adoption of a categorical exemption may reflect a “general policy that is so extreme as to amount to an abdication of its statutory responsibilities.” Indeed.

Citing President Obama’s own repeated public statements and the clear text and effect of the challenged action, the lower courts rejected the president’s argument. DAPA, the Fifth Circuit said, “is much more than nonenforcement: It would affirmatively confer ‘lawful presence’ and associated benefits on a class of unlawfully present aliens.” Thus, the Fifth Circuit did not reach the issue of whether the presumption favoring prosecutorial discretion had been rebutted, because it found DAPA wasn’t an act of prosecutorial discretion in the first place. Contrary to the administration’s erroneous claim, prosecutorial discretion is not a bestowal of royalty. An administration’s desire, for whatever reason, to alter the nation’s laws does not create the divine right to do so. The president is not a king.

The Fifth Circuit made quick work of the administration’s exhaustively expansive interpretations of several provisions of the Immigration and Nationality Act purporting to authorize the whims of the president: “The interpretation of those provisions that the Secretary advances would allow him to grant lawful presence and work authorization to any illegal alien in the United States – an untenable position in light of the INA’s intricate system of immigration classifications and employment eligibility.”

How unsurprising that this administration advances a position that would allow it to grant lawful presence and work authorization to any illegal alien in the United States. And perhaps this shines light on what DAPA was really all about.

The Fifth Circuit recognized DAPA for what it really is: an extra-legislative reincarnation of the DREAM Act, which Congress has repeatedly refused to enact. Indeed, properly recognizing that DAPA would breach the foundations of the republic built on the separation of powers, both the district court and the Fifth Circuit quoted the president’s own statement that it was the failure of Congress to enact such a program that prompted him to “change the law.” The courts in this case have rightly slapped back President Obama’s power-grab. Just as historical practice “does not, by itself, create power,” congressional “inaction cannot create such power,” either. Again, the president is not a king and accordingly, the Constitution empowers the courts to prevent this administration’s lawlessness from reaching new extremes.

Remember, this case is not about immigration policy preferences. It is not about some politically expedient or amorphously moral prerogative to grant lawful status and benefits to as many illegal aliens (or potential voters) as possible. No, an emotional appeal to the plight of illegal aliens cloaks the real issue: The Constitution grants decision-making power in these areas to Congress and Congress alone. The executive is but to enforce and execute the laws made by Congress. It’s true that, for better or worse (mostly worse), Congress has vested agencies with certain duties that often entail discretion. But neither the president nor his agents are granted authority to change the law. “[M]anifestly contrary to the statute,” DAPA changed the law as only Congress may, and violated the president’s solemn duty to “take Care that the Laws be faithfully executed.” This is as clear a case of unconstitutional executive overreach as there ever was. And this is precisely why we at the ACLJ got involved in the case. The administration is pushing. We have to push back.

Thus far, the courts in this case have held the president accountable, calling out his administration for its actions. Surprisingly undeterred, the president brings his case to the Supreme Court. The ACLJ will file yet another amicus brief, now asking the Supreme Court not just to affirm, but to declare the president’s lawless actions unconstitutional.

The orders, opinions, and rationale of the lower courts make clear: The president believes he has virtually limitless authority, and his administration is unrestrained by notions of candor to the court (the district court is reserving the issue of sanctions for numerous “misrepresentations” made by the administration as to the 108,081 applications it granted while the case was pending). And while the concept that a president would exceed his constitutional powers is not novel, neither is the concept that the judiciary will stand in his way.

Such is the case before the Supreme Court.