The Obama Administration, the Dream Act and the Take Care Clause
Texas Law Review, Vol. 91, No. 4, 2013
U of St. Thomas Legal Studies Research Paper No. 12-27
57 Pages Posted: 10 Sep 2012 Last revised: 9 Oct 2012
Date Written: September 9, 2012
The Obama Administration announced last June that it would not enforce the removal mandate of the Immigration and Nationality Act as against as many as 1.76 million immigrants illegally present in the country: young people, often students or veterans, who were brought into the country illegally as children and who would have been legalized if Congress had passed the “DREAM Act.”
This essay explores the constitutionality of such uses of prosecutorial discretion. Our main conclusions are: first, the common idea that the President has a positive constitutional “authority” to decide not to enforce the civil law is mistaken. The Take Care Clause, coupled with related constitutional provisions, establishes that the President has a duty to enforce the laws. This understanding of the President’s responsibility is supported by the Constitution’s text and structure, by the evidence of original intent and early practice, and by English constitutional history. Second, a range of defenses can be made to a breach of duty. The main justifications or excuses that can be used to defend a breach of the duty of faithful execution fall into four main categories: that the “law” whose non-enforcement is at issue is unconstitutional; that enforcement in the particular circumstances would interfere materially with the exercise of another constitutional power of the President; that equity in individual cases warrants forbearance in enforcement; and that the enforcing agency lacks sufficient resources for complete enforcement. The Administration’s non-enforcement decision does not fall within any of these categories.
Third, the conception of Executive power we defend here is fully consistent with the attribution to the President of broad constitutional powers over foreign affairs, national security and military policy. The Framers intended to give Congress the dominant role in regulating domestic matters, while giving the Presidency, with its distinctive institutional qualities of energy, secrecy, speed and unity of purpose, the primary responsibility for foreign affairs. Although immigration straddles domestic and foreign policy, Congress, not the President, has the controlling authority.
Keywords: immigration, executive power, legislative power, Presidency, separation of powers
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