In Crane v. Napolitano, President Obama’s order not to enforce the immigration laws against certain illegal immigrants (who came to the US as children) has been challenged. The basis of the challenge is that Obama’s order is inconsistent with the governing statute. The District Court recently held that the plaintiffs are likely to prevail in their claim, although it has ordered additional briefing on a jurisdictional issue. The court wrote that the statute used the word “shall” and therefore imposed a mandatory duty on the executive.
Let’s assume that Congress did take away the President’s prosecutorial discretion. Is that constitutional? In my opinion, the answer is yes, at least under the Constitution’s original meaning. First, the President is normally required to follow laws that Congress passes. Even if the President does not like the law, that does not give him the right to ignore it. The King of England once asserted that power, but the Glorious Revolution ended it and the Take Care Clause adopts that principle for the U.S. Constitution. Thus, if Congress says that all persons who are 65 years of age and meet certain conditions are entitled to Social Security benefits, the President cannot ignore the statutory directive. Similarly, if Congress says persons meeting other conditions are not entitled such Social Security benefits, the President must also respect that requirement.