Somin on Constitutionality of Immigration Executive Order

Professor Ilya Somin discusses President Barack Obama’s recent immigration executive order in an article on Somin argues that the use of executive discretion is not illegal, but cautions against excessive discretion and overexpansion of federal law. Somin also makes the case that the immigration laws covered by the executive order may go against the original meaning of the Constitution.


In reality, Obama’s actions were well within the scope of executive authority under the Constitution. In a world where authorities can prosecute only a small fraction of lawbreakers, all presidents inevitably make policy choices about which violations of federal law to prosecute and which to ignore. Such choices are inevitably affected by policy preferences. Obama’s decision to defer deportation is in line with those of past presidents. And if any lawbreakers deserve to benefit from prosecutorial discretion, immigrants fleeing Third World poverty and oppression have a particularly strong case. Moreover, at least under the original meaning of the Constitution, the constitutionality of the immigration laws that Obama has chosen not to enforce in some cases, is itself suspect.

Nonetheless, Obama’s actions do highlight the alarming growth of executive discretion in the modern state. The reach of federal law has grown so vast that no administration can target more than a small percentage of violations, thereby unavoidably giving the president broad discretion. That problem did not begin with Obama, and will not end when he leaves office. It can only be effectively addressed by cutting back on the enormous scope of federal law.

Why Obama’s Immigration Policy Is Constitutional,, December 16, 2014. By Ilya Somin.