If you peruse the darker corners of the U.S. criminal code---as I used to do in my youthful efforts to educate myself in law without going to law school---you'll eventually stumble across 18 U.S.C. § 708, which bizarrely makes it a federal crime to "willfully use . . . for any trade or commercial purpose, the coat of arms of the Swiss Confederation, consisting of an upright white cross with equal arms and lines on a red ground, or any simulation thereof." The statute appears alongside a number of other oddities of federal criminal law. You probably didn't know, for example, that it's a federal crime to fraudulently use the 4H emblem, to make commercial use of the Smokey Bear and Woodsy Owl characters, or to make imitation military cremation urns. I suspect that the many vendors of shirts emblazoned with the Swiss Confederation coat of harms have no idea they are committing a federal crime. On Amazon.com, for example, you can buy this from a third-party vendor:
Yet I venture the further guess that the third-party vendor in question is not quaking in fear of federal enforcement in defense of the Swiss coat of arms. Neither is Amazon. And neither, having posted this link in apparent technical violation of the statute, am I. The reason is prosecutorial discretion. No sane executive branch official is going to waste a minute contemplating prosecuting anyone under this law. And, indeed, it appears that no sane executive branch official ever has. I asked Lauren Bateman to run down the enforcement history of the statute. She could find none, though she tells me the Patent and Trademark Office has cited it as a basis to reject trademark applications on occasion. It has been cited only four times in federal judicial opinions, twice in apparent error, once in reference to its historical purpose and once in this amused quip from Judge Richard Posner: "The federal criminal code contains thousands of separate prohibitions, many ridiculously obscure, such as the one against using the coat of arms of Switzerland in advertising . . . or using 'Johnny Horizon' as a trade name without the authorization of the Department of the Interior." A vibrant trade exists in items branded with the Swiss coat of arms. We don't even call it a black market. And nobody for a moment raises the question of whether the presidents who, one after another, have rendered this poor sad law a nullity through some collective policy of ignoring Congress's will have violated their obligations to take care that the laws be faithfully executed.
In the time since President Obama announced his immigration action, a flood of complaints has issued forth from diverse quarters about how the President is ignoring or nullifying the immigration law, how he is violating the Take Clause Clause and supplanting Congress's will with his own. Immigration policy itself is, except at the margins, beyond the scope of what Lawfare normally talks about, but presidential power is not. And a huge amount of what is being said on the subject strikes me as wrong. So I thought I would lay out some thoughts on presidential discretion, congressional power, the interaction of the two, and how the current immigration imbroglio fits into the discussion.
Let's start by busting some myths. First off, it is simply not true that the president must enforce laws that Congress passes. Generally speaking, laws that give the president enforcement authority---either in the civil or criminal arena---do not command him to do anything. They instruct the governed population concerning what people cannot do without incurring the risk of prosecution or civil enforcement. Take the Swiss coat of arms law. It does not mandate that the president defend the Swiss coat of arms. It tells people in general that if they use this image for commercial purposes, the president may take action against them---that he is within his legal authority to do so. In other words, it defines the boundaries of potential liability subject to presidential discretion. As the coat of arms law demonstrates, however, potential liability and actual liability are not coextensive categories. So when I posted the link above, I did so aware (a) that the law could be read to criminalize what I had done (though I would certainly argue that the First Amendment protects my right to use that link in the context of this post), and (b) that because no sane prosecutor would ever consider bringing a case under this law, particularly not in these circumstances, the risk I was incurring is vanishingly small. The reason is not that President Obama is violating the Take Care Clause in his negligent failure to prosecute me for commercializing the Swiss coat of arms. It is that the Take Care Clause does not, in fact, demand enforcement. As the Supreme Court put it in 1985, "This Court has recognized on several occasions that an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion."
The immigration law is really no different from the Swiss coat of arms law, though it surely addresses policy problems of greater moment and controversy. It generally does not---except in specific places, to which I shall return---command the executive branch to do much of anything with respect to undocumented aliens. Rather, as a general matter, it defines what conduct might get an alien deported, and it spells out the process by which the executive branch effectuates that outcome if it chooses to. But with certain exceptions, it does not require the president to deport people. As Justice Kennedy put it in Arizona v. U.S. two years ago, "A principal feature of the removal system is the broad discretion exercised by immigration officials. . . . Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all."
Here's another myth: It's okay for discretion to operate at the level of individual enforcement, but it's not okay to make enforcement judgments at the policy level. In other words, it's fine if successive presidential administrations, confronted by the veritable epidemic of commercial exploitation of the Swiss coat of arms make serial individual decisions not to look at cases, to devote resources to investigating them, or to prosecute them. But it is lawless, monarchical, and a violation of the Take Care Clause for the president to say, "I'm really not all that concerned about commercial use of the Swiss coat of arms, so my administration won't be spending its energy bringing such cases." And it's a usurpation of Congress's constitutional authority to legislate for him to say, "Since Congress won't remove this stupid law from the books, since people clearly want products with this nice emblem on it, and since the purpose of the law was to protect the American Red Cross, my administration will not enforce against vendors who do not threaten confusion with the Red Cross or misrepresent themselves as its official vendors."
In fact, policy level enforcement discretion is as much a part of the enforcement system as is individual level discretion. That's why antitrust enforcement and environmental enforcement are more robust during Democratic than Republican administrations. That's why in Republican administrations, civil rights enforcement tends to focus on allegations of religious discrimination and tends to deemphasize cases on the basis of race or gender, whereas the converse will be true in Democratic administrations. It's also one reason why you won't see any prosecutions under the federal partial birth abortion law during this administration. There's nothing illegitimate or lawless about any of this. The law defines the scope of permissible enforcement, but policy matters a lot in how that enforcement capacity will be deployed. Sometimes, as with the Swiss coat of arms, the proper amount of enforcement is zero. Sometimes, the proper amount of enforcement may involve making bulk policy judgments about classes of people who are going to have enforcement against them deferred or withheld. Consider, for example, the attorney general guidelines about issuing subpoenas to journalists to discuss their sources. The Supreme Court has said that there is no reporter's privilege. The law, in fact, thus does tolerate compelling journalists to reveal their sources. Yet the Justice Department has a whole set of policy restraints against doing so in many instances. Similarly, the department recently announced a policy of deprioritizing marijuana enforcement in those states that have legalized the drug with respect to small quantities of marijuana handled and produced in compliance with rigorous state regulatory regimes.
So what then can the President not do, if he's allowed to make policy-level decisions not to enforce laws, decisions up to and including letting those laws lapse into desuetude?
The answer here is two-fold. First, he cannot change the scope of potential liability. He cannot make it legal to smoke pot, to commercialize the Swiss coat of arms, or to be in the United States under circumstance not approved by the immigration law. He thus cannot prevent a later president from taking a wholly different approach to her enforcement discretion---including at the policy level. That is, he cannot relieve the person who has violated the law of the potential consequences of having done so. The converse is also true. He cannot define activity on his own as constituting a basis for enforcement, say, by announcing that the Norwegian flag looks a fair bit like the Swiss coat of arms and is therefore covered by Section 708.
More subtly, he cannot lawfully defy congressional directives to him---assuming that those directives are themselves constitutional. Congress, after all, has the power---when it chooses to use it---to direct administrative action and to bound the administration's enforcement discretion. Parts of the immigration law do this. For example, the law requires the executive branch to detain criminal aliens pending removal proceedings. Enforcement discretion does not arise because the president has power to ignore the law. It arises as an inherent feature of a world in which we neither could nor would want to prosecute every action that violates a law, and it arises because most laws do not demand their own enforcement. Some, however, do, and when Congress directs presidential action, presidential discretion is commensurately lessened.
Here, ironically, is where the president's executive action on immigration strikes me as most vulnerable, yet nobody seems to be talking about this feature of the action. The president's actions do seem to conflict---or at least exist in tension with---Congress's directives in some respects. We have actually already seen some of these tensions under the DACA---Obama's earlier administrative action on behalf of the dreamers. Consider the mandatory detention directive with respect to criminal aliens that I mentioned above: The act requires detention and removal for "crimes involving moral turpitude," controlled substance convictions, and aggravated felonies. The administration's enforcement plan, by contrast, prioritizes cases involving people who have committed three misdemeanors, one significant misdemeanor, or felonies. So under the act, for an individual who crossed the border without being admitted, a conviction for possession of a controlled substance renders that person subject to mandatory detention. But the DACA guidelines treat possession of a controlled substance as a misdemeanor, and not a significant misdemeanor. So officers are caught between a statutory mandate to detain someone, and an executive directive saying that the officer can't take action against them. This, I think, may well pose a real legality problem, depending on how strict the executive directive is with respect to leaving that person alone.
With the expansion of the new priorities, these tensions may worsen, because there may be other mandatory detention categories which are no longer considered priorities. For example, aliens convicted of two crimes involving moral turpitude are removable and subject to mandatory detention. But the category of crimes involving moral turpitude is a vast one. And while some of these will undoubtedly be considered significant (robbery and domestic battery, for example), others will likely not be deemed significant (what about identity theft, misuse of a social security number, or retail theft?). So again, we could have mandatory detention individuals who are both eligible for deferred action and shielded from any enforcement action because they are not "priorities."
There are other examples of similar issues--places where the statute directs one thing and the administration action appears to direct something else. My point is that if you're going to accuse the president of lawlessness, these are the fields you're going to have to hoe. It's just not good enough to complain that he's not enforcing the law. Just ask the Swiss.