Respect for our constitutive system can be as important as positive constitutional law. Positive constitutional law is written and, if a plaintiff has standing, is likely to be enforced by the judiciary. Our constitutive system, by contrast, is either unwritten or at least unenforced by the judiciary. Order in this system is maintained by the statesmanship of the political branches.
Peter Schuck, a supporter of the President and proponent of immigration reform, has ably articulated the problems of the President’s executive order on deportations as a matter of positive law. But whatever its positive legality, the President’s decision to defer the deportation of millions of undocumented immigrants does not respect our constitutive system. Unprecedented in size in the context of immigration, the executive order is also unprecedented in the justification the President gave for it.
It is true that past presidents have used prosecutorial discretion to suspend some deportations. In some instances, however, as Schuck points out, Congress had already authorized green cards for the family of those who would no longer be deported. In other instances, deportations were suspended because of events in the immigrants’ home countries, such as relaxing standards for Nicaraguans whose country was under the control of communists. Prosecutorial discretion is well designed to harmonize enforcement with other laws and respond to unforeseen events.
But the President’s reasons today for suspending deportations are rooted not in foreign events but in his disagreement with Congress over domestic immigration policy. In his speech justifying the decision, President Obama complained that the House has not taken up the Senate’s immigration bill. He further promised to rescind the order if Congress were to send him a bill to his liking.
This is not the traditional reasoning of prosecutorial discretion but of interbranch warfare. And prosecutorial discretion, unlike the presidential veto and other, more informal tools at the President’s disposal (like patronage), has not been recognized as part of the executive’s interbranch arsenal. Under bicameralism, the House of Representatives has no obligation to take up a bill the Senate has passed, just as the Senate has no obligation to take up a bill passed by the House. The President’s rationale is thus at odds with the legitimate functioning of our government.
Comparisons of this executive order to the Emancipation Proclamation are implausible. A constitutive system that is not positive law is indeed subject to emergency exceptions which wise statesmen can recognize. But the Emancipation Proclamation came in the context of the Civil War. We are not in a remotely comparable emergency.
By tempting future presidents to invoke prosecutorial discretion to change the ordinary political process even in times of ordinary politics, President Obama’s actions will erode the stability of our government framework. Less stability will give way to more acrimony, as even the rules of the game are up for dispute and for change. The President, who campaigned in 2008 as a post-partisan, is now governing as a partisan willing to violate our basic constitutive norms.