New York Times conservative columnist Ross Douthat wrote a column last month that called a potential executive order by President Obama on immigration would be illegal not because the President lacks discretion to defer deportation those facing removal but because the plan would be large in scope and this would be unprecedented for a domestic policy initiative. But despite complaining of “Caesarism” and making various policy arguments why executive action is a bad idea, Douthat doesn’t really ever make a legal argument why an executive order would be illegal. He simply asserts that it would be lawless and reckless.
But an overwhelming number of legal scholars have taken Douthat to task. Just yesterday, a letter signed by 100 law professors from around the country was sent to President Obama explaining that he, in fact, has the power if he wants to use it and given the sorry state of our immigration system and Congress’ lack of willingness to address the problem, it would be irresponsible for him not to use the power at his disposal. And regarding Douthat’s idea that the size of the group is what makes the policy illegal, they address it head on:
Some have suggested that the size of the group who may “benefit” from an act of prosecutorial discretion is relevant to its legality. We are unaware of any legal authority for such an assumption. The administration could conceivably decide to cap the number of people who can receive prosecutorial discretion or make the conditions restrictive enough to keep the numbers small, but this would be a policy choice, not a legal question. A serious legal question would arise if the administration were to halt all immigration enforcement, because in such a case the justification of resource limitations would not apply. But the Obama administration to date appears to have enforced the immigration law significantly through apprehensions, investigations, detentions and over two million removals.
If Douthat wants to argue that it’s bad policy, have at it. But if you’re going to claim the policy is illegal, you’re going to need something better.