Deportations and the Limits of Executive Discretion

As I often explain to my students, Presidents can uncontroversially direct administrative agencies to do those things which lay within the agencies’ congressionally defined authority. But the question arises as to how far this power can be taken before it intrudes upon the province of the legislative branch. (See the Montesquieuan notion of a separation of legislative and executive authority). After all, the President’s Constitutional charge is not to make law, but to “take care that the laws be faithfully executed” (Art II, Sec. 3). Due to the failure of Congress to pass the long-awaited, much-debated Comprehensive Immigration Reform bill, the President is set to announce tomorrow his plan to take executive action to suspend the deportation of up to 5 million persons in the country illegally. Here’s a good summary of the issue:

While some prominent folks have argued that this action is certainly lawful [Update: See one legal scholar explain “The Realities of Administrative Discretion“], others have argued with equal certitude that it is unlawful [Update: See one legal scholar explain “Why Obama can’t declare himself king“]. What is more interesting is that President Obama has seemed to occupy both camps over the last few years (though, as the Washington Post reported yesterday, he denies changing his position). See this clip below from 2011 where the President responds to a question about whether he has the authority to halt deportations:

Then, as late as 2013, President Obama again denies he has such authority:

Though this issue is certainly debatable, the most damning condemnation of Mr. Obama’s planned use of executive authority may be the President himself.

Perhaps, it was this drunken satirical exchange with Mitch McConnell that provoked this change:




2 thoughts on “Deportations and the Limits of Executive Discretion

  1. Good post! Although this is within legal bounds of what any President can do, this right is not exercised much. Do you have a statistic on how many times executive action has been taken in the last 40 years? On immigration policy? I would be interested to know how unique executive action is or isn’t.

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