Executive Non-Enforcement in the Era of the Trump Presidency | Opinion

The following essay is an excerpt from John Yoo's new book, Defender in Chief: Donald Trump's Fight for Presidential Power.

Once Republicans won one of the houses of Congress, President Obama responded with unilateral action rather than legislative compromise. "I've got a pen and I've got a phone," he famously said in 2014. "And I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward." One thing he would not do? "We're not just going to be waiting for legislation." Using a combination of powers delegated by Congress and his own constitutional authority, Obama redoubled his efforts at regulation in his last two years. His administration issued new rules on everything from emissions standards to anti-discrimination to college sexual harassment. But Obama's strategy suffered from a deadly vulnerability. Without Congress, Obama had to use executive orders and regulations that his successor could easily repeal.

Nowhere was this more true than with immigration, perhaps the most volatile and divisive issue facing our nation today. In 2012, the Obama administration announced the Deferred Action for Childhood Arrivals (DACA) program, a non-enforcement policy that halted the deportation of those who were illegally brought to the United States as children. In 2014, the administration followed up with the Deferred Action for Parents of Americans (DAPA) program, which blocked the removal of those here illegally whose children were either U.S. citizens or green card holders. These two policies combined allowed at least five million aliens—about half of the entire undocumented population—to remain in the United States in violation of federal immigration laws. In creating DACA and DAPA, the Obama administration created exceptions that swallowed the rule.

President Obama chose to exercise prosecutorial discretion: the president's right to allocate law enforcement resources among different cases. But that left his policy open to attack. The lower courts enjoined the programs, and the Supreme Court could not muster a majority to revive the case (due to the untimely death of Justice Scalia). Once in office, Trump issued orders reversing DACA and DAPA on the ground that they violated the Constitution. Trump stood on strong constitutional ground. A president's prosecutorial discretion did not allow him to reduce enforcement of a law to zero cases. While President Obama could refuse to enforce an unconstitutional law (and even that remains a controversial claim among scholars), not even the White House could plausibly assert that our immigration laws violate the Constitution. A president has no authority otherwise to refuse to enforce a law simply because he disagrees with Congress' policy choices.

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There are good reasons to support broad discretion in immigration enforcement. The president's ability to moderate legislative purposes through enforcement is a necessary and desirable consequence of a constitutional system that seeks to protect individual liberties by separating the power to legislate from the power to enforce. This separation creates a space in which liberty can be protected by executive discretion to reduce enforcement of laws that are oppressive or harsh.

But the Take Care Clause rejects any claim that President Obama, or any president, could go so far as to reduce enforcement of a law to zero. The Clause naturally reads as a command to the president to put the laws into effect, or at least to see that they are put into effect "without failure" and "exactly." It would be implausible and unnatural to read the Clause as creating a power in the president to deviate from the strict enforcement of the laws. The president's responsibility is supervisory: he is not charged with executing the laws himself. Not only would this obviously have been impossible (how could the president collect customs in both Charleston and Boston at once?), but it is reflected in the phrasing of the Clause. It does not say that the president "shall take Care to execute the laws faithfully," but rather that he take care that they "be faithfully executed." Others will "execute" the laws; the president's role is to see to it that they do so "faithfully."

Article II's vesting of the "the executive power" of the federal government solely in the president makes clear that the Take Care Clause prescribes a duty. The Vesting Clause is a broad grant of power, comparable to those for Congress and the judiciary. But if the Vesting Clause confers the entirety of the "executive power" on the president, what additional power would the Take Care Clause confer? It seems likely that the Vesting Clause confers a power that could, at least initially, include a power to decline to execute the laws, but that the Take Care Clause rejects that implication. President George Washington first declared that "it is the particular duty of the Executive 'to take care that the laws be faithfully executed.'" Unlimited discretion in enforcement policy can become a greater threat to personal liberty and security than the mechanical enforcement of the law.

Finally, what does the Take Care Clause mean by "the laws?" The president has an obligation to enforce all the laws, including the Constitution itself. In the event of a conflict between the Constitution and an act of Congress or a treaty, he may or must refuse to enforce the latter. As the Supreme Court recognized in Marbury v. Madison, judicial review flows from the principle that a court cannot enforce a law that conflicts with the Constitution. To require the president to carry out unconstitutional laws would violate his duty to obey the higher law of the Constitution. Upon taking office, for example, President Thomas Jefferson pardoned those convicted under the Sedition Act, which had made criticism of the government a crime, and ordered all pending prosecutions dropped. Even though the courts and Congress had found the Act constitutional, Jefferson correctly concluded that the law violated the right to free speech. He used his prosecutorial discretion to prevent the execution of an unconstitutional law. But if presidents can decline to enforce unconstitutional laws, the Take Care Clause makes inescapable the reverse—that presidents have no choice but to enforce constitutional laws.

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Courtesy of John Yoo
Courtesy of John Yoo Courtesy of John Yoo

There are additional, functional reasons for a robust understanding of the executive's duty to enforce the law. The passage of legislation is ordinarily an arduous and slow-moving process, requiring proponents of a new law to assemble majorities on repeated occasions to overcome Congress' built-in inertia. The Framers designed multiple veto points, such as bicameralism and presentment, to impede the passage of all but well-considered legislation. With its own internal procedures—including the filibuster—and complex committee structure, Congress itself has substantially added to the bias in favor of inaction. For legislation of any real significance to be enacted, many interested players representing many different perspectives, interests and constituencies must agree. This complicated process encourages legislation that reflects what James Madison called, in Federalist No. 63, "the cool and deliberate sense of the community." The difficulty of achieving a consensus in favor of the legislation should give the president little discretion to set Congress' policies aside.

If carried to an extreme, prosecutorial discretion can distort the lawmaking process. First, Congress might over-regulate in certain areas, with the expectation that the executive will correct for it with remissive enforcement. Second, the threat of non-enforcement gives the president improper leverage over Congress by providing a second, post-enactment veto. A second veto gives him a bargaining edge in negotiating with Congress that the Constitution did not provide. Third, wide non-enforcement creates an incentive for members of Congress to bypass each other in fashioning legislation, and to deal directly with the executive instead. By inviting the president to unilaterally enforce the laws along the DREAM Act's terms, some senators short-circuited the legislative process. Rather than redoubling their efforts to negotiate a deal in Congress, they opened bargaining with the executive. Finally, legislators will be less likely to resist poor legislation if they can make favorable deals with the White House to exempt their favored constituencies.

All of this goes to confirm Alexander Hamilton's claim in Federalist No. 70, that "a government ill executed, whatever it may be in theory, must be in practice a bad government." Our scheme of separated powers, even the very conception of "executive" power in itself, demands a stringent view of the president's duty to enforce an act of Congress, and the Constitution itself as the highest form of law. The constitutional text also speaks emphatically in several places—notably, in the Take Care Clause—against a more permissive understanding of "prosecutorial discretion."

Nevertheless, the resistance to Trump devised a new version to keep DACA alive. It claimed that President Trump could not simply repeal DACA and DAPA by executive order. Instead, he had to use the Administrative Procedure Act (APA), which creates a burdensome process for the enactment of regulations. In Department of Homeland Security v. Regents of the University of California, the Supreme Court agreed. While supporters of broader, more humane immigration policies (among whom I count myself) may well have welcomed the result, they should regret the Court's disruption of executive power. President Obama could issue his extralegal visa programs by simple executive fiat, according to Chief Justice John Roberts and four liberal justices (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan), but President Trump had to pretend the order was legal and use the slow APA to reverse them. "Even if it is illegal for [Department of Homeland Security] to extend work authorization and other benefits to DACA recipients," Roberts found, DACA "could not be rescinded in full without any consideration whatsoever of a" non-deportation policy other than on the ground of its illegality.

According to Chief Justice Roberts, the Constitution makes it easy for presidents to violate the law, but reversing them is difficult.

Two reasons explain why the Court erred. First, Trump should not need to follow the APA because Obama did not follow the APA. Obama characterized his refusal to execute the immigration laws as an exercise of prosecutorial discretion. Trump can use that same constitutional power to increase immigration enforcement. The Supreme Court has forbidden courts from reviewing an executive's exercise of prosecutorial discretion, except when it becomes complete non-enforcement of a law. Second, even if the Trump administration had to provide a reasoned explanation to the courts for its resumption of immigration law enforcement, DACA and DAPA's unconstitutionality should meet the requirement; in fact, a policy's unconstitutionality should be the most important reason to reverse it. The courts cannot force a president to continue to enforce a policy that he believes to be—and in fact is—unconstitutional.

Nevertheless, if the Court believes what it wrote in Regents, then presidents now have a power to reduce enforcement of the immigration laws to zero. Rather than suspend the enforcement of the immigration laws upon alien children or parents, the administration could shift policies toward a merit- and skills-based system. Just as Obama could refuse to remove one category class of aliens as not worth the expense in federal resources, Trump could declare that the U.S. will defer action against aliens with degrees in science, technology, engineering or math from American universities—or those who invest sizable assets in American businesses. If the Constitution, according to the Court, benefits President Obama, it should now benefit President Trump in equal measure. Otherwise, Trump's critics have sought to turn the Constitution into a singular document that handicaps presidents they oppose while empowering those they support. Our Constitution did not prevail for two centuries by becoming so convenient a tool of partisan politics.

John C. Yoo is Emanuel S. Heller Professor of Law at UC Berkeley School of Law, a visiting fellow at the American Enterprise Institute and a visiting scholar at the Hoover Institution, Stanford University. He is the author of Defender in Chief: Donald Trump's Fight for Presidential Power (St. Martin's Press, July 2020).

The views expressed in this article are the writer's own.

Executive Non-Enforcement in the Era of the Trump Presidency | Opinion | Opinion