Eric Posner on What We Should Expect from the Supreme Court's Showdown Over Immigration

What Should We Expect From the Supreme Court’s Showdown Over Immigration?

This morning, the United States Supreme Court will hear arguments in United States v. Texas, a challenge to President Obama’s attempts to grand relief from mass deportation to undocumented immigrants. Emily Bazelon, a staff writer for the magazine, and Eric Posner, a professor at the University of Chicago Law School, have been exchanging emails about what’s at stake in the case and how the court might approach its decision.

Hi, Emily,

It’s hard to make sense of this case. The idea that the president can refrain from enforcing the law is baked into the Constitution; that is what the separation of powers means. To protect us from the might of the federal government, the founders agreed that any coercive action must be authorized both by Congress (which passes a law) and the executive (which enforces it). Anything else is “tyranny.” Thomas Jefferson himself called off prosecutors who were enforcing the Sedition Act, a law that prohibited criticism of the federal government.

Moreover, both DAPA and DACA largely codified the longstanding practice of Democratic and Republican presidents. Because Congress has never given immigration authorities enough money to catch and deport all undocumented immigrants, presidents have sensibly chosen to direct or allow agencies to focus resources on criminals and other dangerous people — not on children, the elderly and others who stay out of trouble. It is true that DAPA and DACA also entitle beneficiaries to work permits, welfare benefits and the like, but the immigration law itself authorizes the executive branch to confer those benefits on anyone whom it decides not to deport, for whatever reason.

Many critics have cited the “Take Care” clause of the Constitution, which, as you say, directs the president to “faithfully execute” the laws. But if Congress deprives the president of the resources necessary to deport everyone, then the president faithfully executes the laws by executing the ones he can afford to execute. In law as in ethics, “ought” implies “can.”

Read more at The New York Times Magazine