Does the President have the Constitutional authority to refuse to deport 3-5 million illegal immigrants?



Obama announced his executive order regarding immigration that he will be signing tomorrow. He stated:

"So we’re going to offer the following deal: If you’ve been in America for more than five years; if you have children who are American citizens or legal residents; if you register, pass a criminal background check, and you’re willing to pay your fair share of taxes – you’ll be able to apply to stay in this country temporarily, without fear of deportation." [...]

"The actions I’m taking are not only lawful, they’re the kinds of actions taken by every single Republican President and every single Democratic President for the past half century."

President Obama earlier made the argument that the President doesn't have the power to do this:

"I take the Constitution very seriously. The biggest problems that we are facing right now have to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all." [...]

"There are enough laws on the books, by Congress, that are very clear in terms of how we have to enforce our immigration system."

"For me to simply through executive order to ignore those congressional mandates would not conform with my appropriate role as president."

Are the president's actions actually lawful? Is he able to use an executive order to delay deportation of millions of immigrants?


Posted 2014-11-21T03:15:15.753

Reputation: 13 508

2There are two questions here: first, there is the question of whether Obama is ignoring the law, and second, there is the question of whether Obama's plan is unconstitutional. Those questions should be explicitly separate. – Publius – 2014-11-21T04:14:31.643

You may be interested in this question

– mikeazo – 2014-11-21T14:38:49.370

@mikeazo, that question would indicate that the president either must take care to dutifully execute the law or that he believes deporting illegals is unconstitutional. I don't think either applies in this case. – user1873 – 2014-11-21T14:47:01.837

2@user1873 - when you said " to change or ignore", did you actually mean "does this action directly contradict the existing law", since by definition an executive action can't change the law, only Congressional action can change it – user4012 – 2014-11-21T18:58:37.057

2@user1873 - If you're actually interested in whether the POTUS has this authority (which is a very interesting question I'd love to see on the site) then it's irrelevant what anyone claimed in the past and you should remove the second quote. Only quotes from constitutional scholars specifically addressing or aware of this set of orders would be relevant. If you're just interested in Obama-bashing, then the quote is perfectly appropriate but the question is off-topic. The choice is yours. (Comment copied from a deleted answer, due to relevance to the question) – Bobson – 2014-11-21T19:29:40.980


As far as I'm aware the exact text of this Executive Action isn't known yet - so this whole discussion is premature. But then he already did something quite similar so

– user45891 – 2014-11-21T19:44:13.443

4Looking at the revision history, the question is substantially unchanged from the original post. Which is to say a lazy post using tu quoque (appeal to hypocrisy) instead of finding a separate source for constitutional law. The real question clearly was: Is Obama a hypocrite? But using a not-so-subtle indirection to ask it. I don't care what your ideological leanings are - but we must stop these sly rhetorical "questions". – LateralFractal – 2014-11-22T01:20:50.730

1As a rule of thumb on - I've found that if the questions contain more references than the answers, then we're making statements more than we're seeking information. – LateralFractal – 2014-11-22T01:29:00.793

It seems only logical to me that the executive branch of government is ultimately going to call the shots on exercising its authority on executing the laws. Lawmakers may not like that, but their authority is limited to legislating. Compare also to the judical process in the US where prosecutors have an enormous amount of power to decide what if any charges someone should face. – Count Iblis – 2014-11-22T20:08:25.813

2@LateralFractal - Agreed. I feel like we ought to start a meta discussion about how to handle questions like this, but I can't quite figure out how to frame it. – Bobson – 2014-11-22T23:32:22.437

@Bobson, with half the people upvoting and half downvoting, perhaps it isn't a problem? Keep in mind I pretty much kept your edit. The only issue I see here is that people don't like the fact that Obama flip-flopped his position. – user1873 – 2014-11-23T01:21:50.277

1@user1873 your last comment pretty much sums up the problem. You are simply trolling with questions like this. There are so many other sites better suited for political trolling. – None – 2014-11-23T02:30:37.200

@dA., you claim that, but you haven't pointed out why? If Obama claims by broadinging the DACA he is ignoring the law, why shouldn't I take him at his word. (Until provided evidence otherwise). This question is to solicit a legal answer on what reasoning would allow/not allow this.

– user1873 – 2014-11-23T02:38:22.687

1@user1873 the 'legal question' is simply "can the president create executive orders". But you didn't ask that. You decided to create a long post with sarcastic and snide references to out-of-context quotes. Many people have explained why your question is poor. Several of us tried to salvage it with edits. 3 people voted to close. Yet you still play this coy "what? Innocent little me?" game. It's so tiring. – None – 2014-11-23T02:43:39.133

Granted, I'm the only one that bothered to even attempt an answer, so I guess I'm the sucker. – None – 2014-11-23T02:57:20.660

@DA. Other's have pointed out why the question was bad, and the question has been changed to reflect those criticisms. As to why the question cannot be generalized to "can the president create executive orders," that is quite obvious. That question is too simple to require an answer. My question is specifically about this executive order (the exact wording isn't known, but what the president claims it says is troubling). Whether he can ignore the laws and refuse to deport a class of people who might be as many as 5 million people, grant them work permits, etc. is a good question – user1873 – 2014-11-23T03:09:30.853

Let us continue this discussion in chat.

– None – 2014-11-23T03:11:56.550



Leaving aside whether or not the President should refuse to otherwise uphold the "law of land," there is a definite precedent for him to act by Executive Order.

From 1801 (under Thomas Jefferson) until 1974 (under Richard Nixon), Presidents had the power to impound otherwise appropriated funds. This meant that Congress could authorize an agency or a law or some program, and appropriate funds to it, but then the President could refuse to actually spend the money. Forty-three states and the Mayor of the District of Columbia still hold this "fiduciary veto" over their respective constituent assemblies.

It effectively is the power of the Executive to veto programs by not spending the money. One can argue that an executive always the power to choose priorities, and this would be one means of doing that.

That said, you will note that the President lost this ability in 1974. Richard Nixon was, in the minds of Congress, too aggresively using this power of the purse. Congress stripped the President of the authority to impound funds in the Congressional Budget Act of 1974. Title X in particular required the President to use allocated funds.

Rightly or wrongly, SCOTUS never intervened in either direction - neither requiring the President to use funds nor limiting Congress when it sought to curb the power of the Presidency.

Executive Action in regards to policy bears an obvious resemblance here. The President, acting in his executive capacity, can legitimize his action as one of merely prioritizing which laws to enforce. In the same way that he directed the Justice Department not to enforce drug policy in those states that have legalized it, he is merely instructing Immigration and Customs Enforcement to prioritize the deportation of criminal immigrants over what he considers to be "less dangerous" immigrants. Likewise, Congress has the authority to direct the President otherwise by creative legislation.

Long answer short - the President can order his executive authority as he sees fit, but the Congress still has checks and balances on any action or inaction he might take. Until the Supreme Court weighs in, it is "constitutional" (moreso in the British sense) but clearly on the edges of branch conflict.

Affable Geek

Posted 2014-11-21T03:15:15.753

Reputation: 15 197

Hmm. This is an interesting answer, but I'm not sure how much it answers the Constitutional question here. I usually see it phrased as a question of whether or not this deferred action program is an appropriate exercise of the president's prosecutorial discretion. Perhaps your answer should incorporate that? – Publius – 2014-11-23T04:29:06.543

@avi the problem with questions regarding constitutionality is that none of us can answer them. Only the court can. We can offer opinions and theories--as do many, many people in the media do surrounding these types of topics, but ultimately, it's always constitutional until a court says otherwise. – None – 2014-11-23T07:48:57.287

@DA Technically yes, but I think that an answerer can give a reasonably good description of the consensus of experts on this subject, if indeed there is one. And in this case, there is, and there's precedent to go with it. Furthermore, Constitutionality is independent of a Supreme Court decision, as the court could make an incorrect ruling (though I agree that gets into more difficult questions). – Publius – 2014-11-23T08:00:19.423

@Avi if there is a consensus, I'd agree with you. And that's probably how the question should have been worded "Is there a consensus of opinion (from experts on the topic) as to whether or not this order will be deemed constitutional if taken to court?" Alas, I think the answer most of the time will be "no, there is no consensus--just lots of opinions." – None – 2014-11-23T08:05:01.893


To answer Bobson's version of the question (which is a much better question)

Are the president's actions actually lawful?

Until a court says they are not, yes.

Is he able to use an executive order to change or ignore immigration law?

No. Executive orders can't change laws. The laws remain as is. It takes an act of congress to change a law. What an executive order is allowed to do is change the details of how (or if) a particular law will be enforced by the government.


Posted 2014-11-21T03:15:15.753


1-1, because the second part of the answer is fully unreferenced. You need to show an exact wording in the law that allows a process of excluding people wholesale from deportation; OR at least says that the deportation law is inapplicable to a large class of people that matches Obama's executive order. As stated, this is your personal opinion that his executive order did NOT change the law as opposed to changing details of implementation not covered by the law itself. As it is, your answer's second part amounts to "I agree with what Obama stated", with no backup for why he stated valid thing. – user4012 – 2014-11-21T18:45:56.233

Comments are not for extended discussion; this conversation has been moved to chat.

– Sam I am says Reinstate Monica – 2014-11-24T20:21:30.337

Unfortunately, I am unable to undelete DA's comments so that they could end up getting moved to chat, since DA deleted them himself – Sam I am says Reinstate Monica – 2014-11-24T20:23:40.110