More Thoughts on Immigration -- Why I Think the Tiberius Gracchus Analogy is Particularly Apt

First, congrats to many millions of people who can remain in this country, a status they should have always have had.  We can argue whether anyone who makes his or her way over the border should be able to vote or draw benefits, but there is no doubt in my mind that they should be able to live anywhere they can pay the rent and work anywhere that there is an employer willing to pay them.

I am willing to accept the analysis of folks like Ilya Somin who say that the President's non-enforcement decision on immigration laws is legal.  But I think his concept of "precedent" when he says there are precedents for this sort of thing is way too narrow.  This is an important, dangerous new precedent.

What I think folks are missing who make this argument about precedent is that while many examples exist of the Executive Branch excercising proprietorial discretion, the circumstances are without precedent in both scale and well as in its explicit defiance of legislative intent.  One can argue that Reagan's executive actions vis a vis immigration provide a precedent, for example, but Reagan was essentially following the intent of then-recent Congressional legislation, arguably just fixing flaws with executive orders in the way that legislation was written.  What he did was what Congress wanted.

The reason I think Tiberius Gracchus is a good analog is that Gracchus too took actions that were technically legal.  Tribunes always technically had the legal power to bypass the Senate, but in hundreds of years had never done so.  Despite their technical legality, his actions were seen at the time as extremely aggressive and plowing new Constitutional ground, ground that would soon become a fertile field for authoritarians to enhance their power.

Somin includes the following, which I think is an example of where defenders of the President's process (as different from the outcomes) are missing reality.  He writes:

I would add that the part of the president’s new policy offering work permits to some of those whose deportation is deferred in no way changes the analysis above. The work permits are merely a formalization of the the president’s exercise of prosecutorial discretion here, which indicates that the administration will not attempt to deport these people merely for being present in the United States and attempting to find jobs here. They do not purport to legalize their status, and the policy of nondeportation can be reversed at any time by the president or his successor.

This is one of those statements that are technically true, but totally obtuse at the same time.   Issuing formal get-out-of-jail-free cards to 5 million people is unprecedented.  Think of it this way:  Imagine a Republican President who is opposed to the minimum wage.  The Executive branch is tasked with enforcing that law, so wold the folks defending the President's methods also argue hat the government can issue permits to 5 million businesses allowing them to  ignore labor law?  Or emissions standards?  Or insider trading laws?

People are just being blinded by what they rightly see as a positive goal (helping millions of people) if they fail to see that the President issuing licenses to not be prosecuted for certain crimes is a huge new precedent.  Proprietorial discretion is supposed to be used to avoid patent unfairness in certain cases (e.g. the situation in Colorado with conflicting state and Federal laws on marijuana).  It is not meant to be a veto power for the President over any law on the books.  But I can tell you one thing -- it is going to be seen by future Presidents as just this.  Presidents and parties change, and for those of you swearing this is a totally legal, normal, fully-precedented action, be aware that the next time 5 million wavers are issued, it may well be for a law you DO want enforced.  Then what?

Update:  Libertarians are making the case that the Constitution never gave Congress the power to restrict immigration.  I could not agree more.  However, I fear that will have zero impact on the precedent that will be inferred from all this.  Because what matters is how the political community as a whole interprets a precedent, and I think that this will be interpreted as "the president may issue mass waivers from any law he does not like."  Now, since I dislike a hell of a lot of the laws on the books, perhaps over time I will like this precedent.  But the way things work is that expansive new executive powers seldom work in favor of liberty in the long run, so I am skeptical.


  1. xtmar:

    I look forward to a future president waiving prosecution for violators of title II of the NFA. This also has the advantage that it's much harder to undo than what our current President is doing.

  2. Curtis:

    What happened to the Roman Republic?

  3. Cardin Drake:

    What the President did sounded reasonable. The reality is far different. It is one thing to allow those who are already here to stay. It is another to allow entry to all that want come. The border patrol does little more now than escort into the interior those arriving on our shores, and help them set up hearings that they will never attend. The President has loudly announced to the world that if you get here, you can stay, and you will have full access to our social services. There will be no border enforcement. That's reality.

  4. WillusM:

    Very, very well said. To build on the the update's point: "Libertarians are making the case that the Constitution never gave Congress the power to restrict immigration. But Obama, his supporters, and his detractors are NOT making this case, they are making another: that the president can direct the executive branch to ignore whichever laws displease him."

  5. Nehemiah:

    "Libertarians are making the case that the Constitution never gave Congress the power to restrict immigration. I could not agree more."

    I thought libertarians prided themselves on Constitutional literacy? Article 1, Section 8 provides that Congress shall establish an uniform Rule of Naturalization...... Unless I don't understand the meaning of Naturalization I think the Constitution charges Congress with establishing immigration law which governs naturalization.

    Another quick check of my handy Constitution booklet indicates that once laws are on the books, the President is charged with enforcement, Article 2. Doesn't say anything about using his discretion, although Congress has been lax in overseeing executive action. Article 3 established the Supreme Court (and inferior courts as needed) for the purpose of interpreting how the laws of the land are to be applied to the interaction of its constituents.

    There is no Constitutional cover for the action being taken by this President and it is time Congress starts exerting its power under the Constitution or it risks becoming functionally irrelevant.

  6. LoneSnark:

    I think it is important to remember this is an important type of discretion used by the Judiciary. When a law passed by Congress is cruel, unusual, or merely ridiculously unclear, the Judiciary doesn't force society to live with it. Such laws go unenforced. We are extremely used to this procedure of Judges throwing laws off the books.

    That said, Presidents have always had trouble enforcing laws they disagree with. Only difference here is that the President is stating this trouble explicitly.

    Oh well, I guess this might be an opinion thing, no way to prove at this point how the future will turn out. But as things are, yet another agency deciding to let laws drop sounds like a good thing to me. Maybe that is merely a lack of imagination on my libertarian part.

  7. mahtso:

    I suggest folks also look at the Necessary and Proper Clause and Art. I Section 9

  8. mahtso:

    I saw a funny cartoon showing a man telling the President that Constitutional Scholars were offering conflicting opinions on whether his act was lawful, and that was looking at only the President's own opinions

  9. mx:

    Immigration officials and immigration judges produce results that are, on an individual level, cruel, unusual, and ridiculously unfair thousands of times a day.

  10. CTD:

    The actions of the Gracchi brothers are seen by some historians as the beginning of the end of the Roman republic.

  11. Bolt1493:

    The Brothers Gracchi are usually considered the first to see the faults in the development of the Roman Republic caused by the conquests of the preceding period. Their grain laws are problematic but can be seen within the context of the Latifundia being controlled by the rich knight and senatorial classes. I think most historians see the rise of Gaius Marius, Sulla and the Social Wars as the beginning of the end of the Roman Republic. But it is usually at the Brothers Gracchi that the story starts. I just hold in my head a view that understanding the real political and economic currents and how people really thought is next to impossible 2200 years later using very fragmentary and biased sources.

  12. bigmaq1980:

    "But the way things work is that expansive new executive powers seldom work in favor of liberty in the long run, so I am skeptical."

    At the prior article I concluded something similar, except I am well past skeptical to just shy of gloom.

    We have not seen much advance in the cause of liberty in the past few generations relative to the increase in oversight and intrusiveness of the government at all levels. Every step forward seems to be echoed by two steps back.

    Not clear at all that trend will abate with a sudden desire for everyone to drop their special claims, benefits and offenses, and recognize our real enemy is the size and scope of government.

    We readily indict a "Do Nothing Congress", when we should be celebrating such minimalism. Nearly a day, if not a moment, doesn't go by when someone utters the equivalent of "there ought to be a law ... ".

    This precedent significantly opens one level of (quasi legislative) restraint that we had. If we were not before, we are in a legislative arms race towards tyranny.

  13. bigmaq1980:

    Presumably you are referencing the "ex post facto law" restriction. Correct?

    What is not clear is how it applies here, as legal cases seem to reflect on criminalizing activity that was formerly legal, yet applying the law retrospectively to those actions taken before the law was passed.

    It also has been used in the flipside effect of nullifying past actions that were deemed criminal (and not yet prosecuted) but are now legal once the law is changed.

    Might be worth a few words to explain your thoughts on how this applies.

  14. bigmaq1980:

    Yet we know that Presidents have used discretion. Have they never been authorized?

    If not explicitly, then a case can be made that Congress defacto gave the POTUS' permission by historically not challenging their use of this discretion.

    The question does come back to intent of the subject law as passed by Congress originally (as written), and the scale of the impact - relative to the size and scope of past discretions (with historical context and current context - this is far from unanimous, or even super-majority support for Obama - not even like Obamacare with 50% +1 vote in the Senate),

  15. Daniel Barger:

    The Constitution neither grants nor deny's congress power to deal with immigration. There are LOTS of things that congress has passed laws regarding that are neither specifically within or specifically beyond the authority of congress. The SCOTUS and other courts have not ruled immigration laws to be unconstitutional so it would seem such laws are valid. And since they exist they need to be enforced.....otherwise there is no point to having ANY laws of ANY kind.

  16. me:

    Every time I read your commentary (regardless on where I land on the issues involved), I am gratified to see you argue a stance that isn't falling into the dualism-trap that captures almost all US discourse. Thank you for raising the debate a level or two.

  17. mahtso:

    "The Migration or Importation of such Persons as any of the
    States now existing shall think proper to admit, shall not be prohibited by the
    Congress prior to the Year one thousand eight hundred and eight, but a tax or
    duty may be imposed on such Importation, not exceeding ten dollars for each
    Person" Art 1 Sec 9 Cl 1

    I see this as allowing the Congress to create laws regarding immigration (and slavery) after 1808. As to the N & P clause, to the extent that one would argue that the Naturalization clause does not cover immigration laws (as does the author in the piece linked by coyote), the N & P would fill that void.

  18. stevewfromford:

    You may "wish" that there were no welfare and other benefits to draw aliens but the fact is that there are and these two ideas, open borders and a vast welfare state, are fundamentally incompatible and will lead to ruin.
    Your stance on immigration is foolish so long as we live in a nation where everyone has a "right" to everything!

  19. Zachriel:

    "The Executive cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences." — Office of Legal Counsel

    However, Congress has only allotted funds to remove about 400,000 aliens per year, out of a population of over 11 million. Furthermore, Congress prioritized the removal of convicted criminals. The courts have ruled that the INA has wide discretion, and that directives to preserve the family unit are within that discretion.

    In other words, the President's actions are within his statutory and legal authority.

  20. mlhouse:

    Sorry again Libertarians. "To establish a uniform Rule of Naturalization," Congress clearly has the power to create laws with respect to immigration.

    And whatever this clause does not cover the Commerce Clause does.

  21. Fred_Z:

    I look forward to the president directing that those who camp without paying in government owned but privately managed parks not be prosecuted.

  22. mike2000917:

    Bryan Caplan discredits all libertarians with his viewpoints. The constitution clearly provides for the allowance of immigration laws and control of who can be in this country. Un-controlled immigrations will put an end to this great experiment in democracy and quickly render any intellectual utopian arguments about freedom of movement moot.