Immigration and Preemption

Mark Thompson in reply to Koz says:

@Koz, I did not see Kobach’s article, and I don’t have the time right now to track it down – do you have a link?

I also need to find the time to read the Administration’s actual brief, although my understanding (which may well be wrong) is that they have emphasized the statutory and/or Article I preemption arguments over the Executive priority, Article II, argument.

I’m increasingly convinced that the former argument is wrong and also unlikely to suceed in court (although it’s the 9th Circuit, so it could conceivably obtain some temporary success before the SCOTUS rejects it). The Article II argument strikes me as much more interesting and likely to succeed.

As for the Executive Power question, I get your point, and it’s a fair one. It’s also an issue I’ve thought about a lot in both this and (especially) other contexts. The idea that enforcement priorities can be so heavily a function of arbitrary political decisons absolutely bothers the hell out of me (although it should be reiterated that the evidence suggests that enforcement has been a higher priority in the Obama administration than in previous administrations). However, this is a problem created primarily by Congress, with its insistence over the last century of issuing ever-more laws and edicts for the President to enforce while more or less retaining its authority over the amount of federal spending at the President’s disposal for said enforcement. It is now impossible for a President to enforce all (or even most) laws equally, which means that the Executive branch has the de facto authority to act as legislator-in-chief. This is a central point underlying my arguments that Congress has abdicated its Constitutional role.

As a practical matter, though, this means that the Executive has little choice but to engage in a lot of politically-based prioritization, and I don’t think there’s ever been any dispute that Article II gives it (and always has) the exclusive authority to make such decisions. In that sense, then, a prioritization-based argument is not an expansion of executive power; instead it simply demonstrates the extent to which the reach of the federal government has gotten out of hand.

This is an important contrast to many of the Bush-era executive power expansions (still claimed by the Obama Administration), which often claimed new powers for the government that had not previously existed. Put another way, those expansions were particularly troublesome because they claimed new tools for the government that were not only extra-Constitutional but also lacked strong precedent in case law. The prioritization argument, on the other hand, simply applies long-established (and more or less undisputed) tools to defend a seemingly unpopular use of those tools. Individual states cannot dictate to the federal government what the federal government’s enforcement priorities are.

That said, whether this is actually a case of a state dictating enforcement priorities to the federal government strikes me as something that is ultimately a question of fact rather than a question of law, and while I may think the facts are likely to turn out in a particular way, I have to acknowledge that there’s not yet been time to develop much evidence on that question one way or another.Report