With Republicans still throwing a fit over President Obama’s executive order of a few years ago that put the focus on undocumented immigrants who committed crimes rather than on law-abiding kids who were brought here by their parents, Eric Posner points out that presidents not only can choose which laws to enforce in which way, but they must do so.
The executive branch spends a lot of time not enforcing laws. Congress has illegalized an enormous amount of activity without giving the president the resources to enforce the laws, so the executive has no choice but to make a list of priorities and devote its attention to law violations that, in its opinion, are the most serious. Thus, the IRS doesn’t audit paupers very often. The Justice Department ignores a lot of anticompetitive behavior that might raise prices a bit but not much. The DEA focuses on criminal syndicates rather than ordinary drug users, although both violate federal law. And so on.
Nearly all of this non-enforcement takes place with implicit congressional acquiescence; once in a while, Congress complains because the president’s priorities are not the same as its own. But the president has no obligation to listen to these complaints. The Constitution gave him executive power while preventing Congress from compelling the president to act except by issuing the extreme and usually non-credible threat of impeachment. This is the separation of powers. People like Douthat wrongly think that separation of powers means that the president must do what Congress decides. That’s not the principle of separation of powers; that’s the principle of legislative supremacy, embodied in parliamentary systems like Britain’s, which America’s founders rejected.
This is not an unlimited power, of course, and there are many ways in which this could be done that would be inherently unfair. We see the dangers of selective enforcement of the law in the clearly racist enforcement of our drug laws all over the country. But sometimes it’s entirely legitimate and necessary, as it is with the IRS auditing wealthier taxpayers more often than the average person.
And yes, as it is with the decision to focus the attention of the INS and other federal agencies on law-breaking immigrants rather than law-abiding ones. We aren’t going to round up 8-11 million people and deport them, nor should we. Our concern should be for those who endanger others, not those who are here merely to help their families and escape poverty.