by Michael Dorf
My latest Verdict column explores Donald Trump’s claim that the Orlando mass murder vindicates his proposal to block Muslims from immigrating to the United States. Spoiler Alert: I conclude that it does not.
Here I want to address a related question raised by a number of statements I have seen. Some people have suggested that by stretching the envelope of what a president can do with respect to immigration without congressional authorization, President Obama has established a dangerous precedent that could be used to exclude Muslims by Trump. Is that right?
I want to begin by stating that I have sympathy for the general form of the claim. Executive actions by one administration can expand the options available for a later administration in various ways.
(1) Administration 1 might do something that gives Administration 2 ideas it wouldn’t have come up with on its own.
(2) If Administration 1’s envelope-stretching policy is challenged in court and upheld, that could establish a judicial precedent that will be invoked in support of Administration 2’s policy. Because of the path-dependence of the law, this could make a difference. If the challenge to Administration 2’s policy occurred without the courts ever having considered Administration 1’s policy (say, because it didn’t exist), then they might strike down Administration 2’s policy, but if there is already a precedent on the books validating Administration 1’s policy, that could be enough to tip the balance in favor of upholding Administration 2’s policy.
(3) Even if the issue never makes it into court, Administration 1 could establish an executive-branch precedent. There is a now well-established tradition by which lawyers in the Office of Legal Counsel (OLC) understand themselves to be working out the bounds of executive power (and other legal issues) in ways that are deemed at least somewhat binding even from one administration to the next, without regard to party. These precedents can be especially important in circumstances in which the political question doctrine, standing requirements, and other limits on justiciability mean that the relevant policies will not be subject to challenge in court.
(4) Administration 1’s willingness to engage in some policy may shift public opinion in favor of acceptance of that kind of policy, giving the allies of Administration 2 an argument to use in public discussion of the latter’s policy.
I think any and all of these concerns could in principle be in play in any given setting. That’s why I have sometimes expressed concern about the scope of executive power asserted even by administrations I generally support and for policy positions that I favor.
Yet having said that, I think the concern is misplaced here. Let’s go through the factors.
(1) Although Trump announced his anti-Muslim immigration plan after President Obama announced his program of expanding deferred action for certain undocumented immigrants, there’s no reason to think that the Obama program planted the seed in Trump’s mind. Indeed, with his characteristic vagueness, Trump’s initial announcement did not say whether he imagined that he would act unilaterally or seek a change in the law from Congress. It’s true that since then some Trump sympathizers have pointed to Obama’s immigration policy, but that is a post hoc move. It is perhaps relevant to consideration (4), but not to (1).
(2) We will find out soon—possibly as early as tomorrow—whether the challenge to the Obama program sets a judicial precedent that is useful to Trump, but it seems highly doubtful. The public rhetoric around the program (mostly by the critics but also occasionally by the Obama administration itself) has been couched in terms of executive power to go it alone. However, the actual legal challenge is much more mundane. Texas says that the program is not authorized by statute; the federal government says it is. Thus, even if the SCOTUS does not split 4-4 and set no precedent, the very likely outcome is no new precedent with wider significance. The Court will either say that the program violates federal law and is thus illegal or that it is authorized by federal law and is thus legal. Either way, that doesn’t set a precedent of any value for defending an executive-imposed ban on Muslim immigration. The principle that the executive can’t break the law is already a firmly established precedent.
(3) Non-enforcement or under-enforcement decisions are most likely to be the kinds of decisions for which executive precedents are especially important, because such exercises of prosecutorial discretion will not typically be subject to judicial review. This leaves a clear field for the likes of OLC. I have been most concerned about broad assertions of prosecutorial discretion not to enforce laws that the administration simply deems to be low priority based on policy disagreement with those laws, rather than based on resource constraints. As I have noted before, I think there is a good resource-constraints argument for deferred action on immigration, but I think the case for federal non-enforcement of the Controlled Substances Act with respect to marijuana in states where it is legal is harder to justify on resource-constraints grounds. Insofar as executive-branch legal precedent with respect to the marijuana under-enforcement policy expands the sorts of acceptable justifications for under- or non-enforcement more generally, that could be worrying when a different administration with different priorities comes to power.
Note, however, that the potentially dangerous precedent is not the Obama policy on immigration. Everyone--including the state plaintiffs in the challenge to the policy--accepts that the policy of deferred action itself is a valid exercise of prosecutorial discretion. The challenge goes to other benefits that follow deferred action. And deferred action itself is unproblematic even in the non-justiciable intra-executive context because the resource constraint is so clear with respect to immigration.
What about more aggressive assertions of prosecutorial discretion, e.g., with respect to marijuana? Are they troubling? In some potential future Republican administration, yes, but not in a Trump administration. A conventional Republican administration could be expected to follow the custom of taking intra-executive precedent seriously, even if it would shade that precedent differently. The key point of reference here is the brief period during the George W. Bush administration when OLC bent to the political will of the White House on torture--but that deviation was corrected during the Bush administration itself. Thus, one might reasonably worry that a (now purely) hypothetical Jeb Bush administration which would otherwise feel itself constrained to enforce environmental laws even when it disagreed with them would feel liberated not to enforce those laws by an Obama administration OLC memo authorizing marijuana non-enforcement. An administration that can be constrained by internal executive branch legal analysis can be liberated by it.
By contrast, Trump would not be likely to be constrained by prior internal executive legal analysis in any event. Given what we know about Trump, I think it doubtful that he would appoint as head of OLC someone who would be inclined to tell him not to do something he has concluded he could get away with doing. And even if Trump appointed someone with backbone and integrity to head OLC, Trump wouldn't necessarily pay OLC any heed. Trump might not even obey a court order telling him to do something he doesn't want to do (or to refrain from doing something he wants to do), but he would be even less inclined to conform his policy to what he would regard as mere advice. Thus, because Trump would be inclined to try to do anything he could get away with already, the fact that some intra-executive precedents might make it easier to argue that some otherwise problematic course of conduct is less problematic seems like an irrelevancy.
(4) Finally, what about public opinion? Public opinion is likely to be much more keenly tuned to policy substance than to procedure. Although Democrats and Republicans like to cite one another's past positions when their positions flip (on, say, the filibuster), my sense is that the general public pays little attention to such matters beyond the first-order policy dispute. The people who think that Obama is abusing his executive power are mostly the same people who disapprove of his policies, just as the people who thought Bush was abusing his executive power were mostly the same as those who disapproved his policies. So while the sets don't overlap completely, the extra policy room created by public opinion from one administration to the next is likely to be small. That's especially true when the politics are so completely opposite, as they would be in a shift with respect to immigration from Obama to Trump.