The Federalist Society held their annual conference last week and a panel of conservative legal scholars agreed that President Obama does have the authority to defer some deportations, partly because of inherent executive authority and partly because Congress wrote the immigration laws to give the president such authority.
The talk was, well, lawyerly. Every conclusion seemed to have a qualification attached to it. But, by and large, the panelists agreed the president has wide legal latitude to prioritize and shape deportation laws, as regrettable for Republicans or the long-term balance of powers that may be.
“I think the roots of prosecutorial discretion are extremely deep,” said Christopher Schroeder, the Charles S. Murphy Professor of Law and Public Policy Studies at Duke Law School. “The practice is long and robust. The case law is robust. Let me put it this way: Suppose some president came to me and asked me in the office of legal counsel, ‘Is it okay for me to go ahead and defer the deportation proceedings of childhood arrival?’ Under the present state of the law, I think that would be an easy opinion to write. Yes.”
Schroeder was speaking specifically about the deferred action program that Obama already has put into place — the one affecting so-called Dreamers who were brought to the U.S. as children. But later, Schroeder expanded his legal reasoning.
“I don’t know where in the Constitution there is a rule that if the president’s enactment affects too many people, he’s violating the Constitution,” Schroeder said. “There is a difference between executing the law and making the law. But in the world in which we operate, that distinction is a lot more problematic than you would think. If the Congress has enacted a statute that grants discretionary authority for the administrative agency or the president to fill in the gaps, to write the regulations that actually make the statute operative, those regulations to all intents and purposes make the law.
“I agree this can make us very uncomfortable. I just don’t see the argument for unconstitutionality at this juncture,” Schroeder added…
“I’m not disagreeing with you,” chimed in John Baker Jr. midway through Schroeder’s remark. Baker, a visiting professor at Georgetown University Law Center, had earlier accused the Obama administration of having, “as its purpose,” the goal of “destabilizing the republic.” But he also made the case that the way to stop a president this hell-bent on destruction was neither through lawsuits nor impeachment. It’s through cleaner legislative language.
“If Congress wants to restrain the discretion of the president, they are supposed to do what the separation of powers encourages them to do: Write the statute tightly so that it will be actually administered the way you want it administered,” Baker said. “The reality is many members of Congress don’t care how it is administered until somebody squawks about it. They don’t read the statutes, so how do they know how it is going to be administered.”
This is the difference between politicians, pundits and talk show hosts, on the one hand, and actual legal scholars on the other. The former group rarely gives a damn about whether they’re right or not, only whether the position they’re currently taking is politically useful for them; if it isn’t, they’ll happily take the opposition position. Legal scholars, on the other hand, have an ethos of intellectual honesty that usually prevents them from playing partisan games.
The fact that Ted Cruz, who is a con law scholar, still plays such games only goes to show how completely dishonest he is. He knows better, he just doesn’t care. He wants power and influence and intellectual consistency is of little use in achieving those things.