The Man Who Would Be King

Here at Power Line, we have argued strenuously that President Obama’s orders suspending enforcement of various immigration laws are unconstitutional because they violate the Take Care Clause. Law professor and former appellate judge Michael McConnell makes that point powerfully, reviewing the long struggle in Great Britain over royal prerogatives, the context of the founders’ inclusion pf the Take Care Clause in the Constitution, and its subsequent legal history in the U.S. The case seems to me to be not just persuasive, but overwhelming:

One of the most closely watched cases before the Supreme Court this term is United States v. Texas, the immigration case that is scheduled to be argued on April 18. The Supreme Court surprised most observers when it asked the parties in that case to address a question they did not raise in their briefs: whether President Obama’s “Deferred Action for Parents of Americans” (DAPA) order violates the “Take Care Clause” of Article II of the Constitution. …

The Take Care Clause, found in Article II of the Constitution, the Executive Power Article, is comprised of only nine words: the president “shall take care that the laws be faithfully executed.” But an understanding of those nine words requires an appreciation of their roots in English history. Like many other structural features of the United States Constitution, the Take Care Clause derives from the long struggle between Parliament and the Crown over the extent of “prerogative powers”—that is, the monarch’s asserted powers to create laws or otherwise to act unilaterally. …

The most important struggles over prerogative during the Restoration period (1660-1688) involved the suspension and dispensing powers: the power to suspend the execution of a law, and the power to grant dispensations or indulgences permitting people or corporations to act in ways that would otherwise be unlawful, notwithstanding (or non obstante) the law. As defined by a leading historian, “the power to suspend a law was the power to set aside the operation of a statute for a time. It did not mean, technically, the power to repeal it. The power to dispense with a law meant the power to grant permission to an individual or a corporation to disobey a statute.” …

When the Framers met in Philadelphia in 1787, they too discussed the royal prerogative to suspend laws or grant dispensations. … On July 26, the Convention referred the executive power question to the Committee on Detail, which was chaired by Rutledge and dominated intellectually by Wilson, two of the delegates who had expressed concern about executive prerogative on June 1. The draft Constitution at that point vested a “single person” with “power to carry into execution the national laws.” The Committee changed this to read: “he shall take care that the laws of the United States be duly and faithfully executed.” As a result, the execution of the law became a duty rather than power, as indicated by the word “shall.” This effectively precluded any assertion of a dispensing or suspending power.

The Take Care Clause’s rejection of the suspending and dispensing powers is so unambiguous that it has been accepted even by the executive branch. …

Apart from its subject matter, the executive action challenged in this case precisely parallels James II’s use of the dispensing power. The Immigration and Naturalization Act defines persons who entered this country without authorization and do not fall into any of its specific exceptions as being here unlawfully. That includes the beneficiaries of the DAPA order. Among the consequences of unlawful presence are ineligibility for work permits and for many social welfare programs. Moreover, the INA expressly provides that every day a DAPA beneficiary spends in the United States should accrue as time under the individual’s unlawful-presence clock. These consequences were set by Congress for the purpose of discouraging illegal immigration. And unlike deportation, which necessarily involves enforcement discretion, these consequences are absolute—unless there is an explicit statutory exception, these consequences apply to every person in this country unlawfully.

The constitutional argument against President Obama’s partial suspension of the immigration laws is, I think, overwhelming. Since DAPA was invalidated by the court of appeals, I don’t think Justice Scalia’s absence will be critical. Still, at a minimum, the application of his penetrating intellect to this fundamental issue will be missed.

Readers may also be interested in this rather sardonic post, in which I suggested that any ambiguity about President Obama’s power to suspend enforcement of the immigration laws could be eliminated by amending the Constitution to add this crystal clear language: “The President shall take Care that the Laws be faithfully executed.”

Responses