Constitution Check: Is the President’s new immigration policy already a constitutional dead letter?

Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, explains why the debate over a federal judge’s ruling against President Obama’s immigration policy is more of a political argument, and not a constitutional one.



“President Obama abdicated his responsibility to uphold the United States Constitution when he attempted to circumvent the laws passed by Congress via executive fiat, and Judge Hanen’s decision rightly stops the President’s overreach in its tracks.”

– Texas Governor Greg Abbott, in a statement on February 17 in reaction to a decision by a federal trial judge in Brownsville, Texas, temporarily blocking the Obama Administration’s new deferred deportation policy, announced last November and due to go into full effect this week.

“This decision is a victory for the rule of law in America and a crucial first step in reining in President Obama’s lawlessness. The President’s action, both unilateral and unconstitutional, was an affront to everyone pursuing the life of freedom and opportunity in America the right way.”

– Texas Attorney General Ken Paxton, in a statement on February 17 about the court ruling.

“The government claims sole authority to govern in the area of immigration, and has exercised that authority by promulgating a complex statutory scheme and prohibiting any meaningful involvement by the states….However, the government has decided that it will not enforce these immigration laws as they apply to well over five million people, plus those who had their applications [to enter the program] denied. If one had to formulate from scratch a fact pattern that exemplified the existence of [a state’s right to sue] due to federal abdication, one could not have crafted a better scenario.”

– U.S. District Judge Andrew S. Hanen, in his 123-page decision on February 16, explaining his ruling to temporarily block the new federal government’s policy of deferring deportation of undocumented immigrants living in the U.S. for a period of years.


To the Founders who wrote the American Constitution, the concept of “abdication” was more familiar to them as what sometimes happened when an English king or queen gave up the crown, under pressure or to hand it on to a favored successor. But the Founders were familiar with the idea of dereliction of duty, and they wrote into the basic document an obligation that would be binding on every president who would thereafter serve.

That duty is spelled out in Article II, Section 3, declaring that the president “shall take care that the laws be faithfully executed.” Execution of the laws, they understood, was different from enactment of them; legislating was the duty of Congress. But, over time, “execution” has come to be understood as leaving the president with some discretion – perhaps a lot of discretion — about how to enforce the laws passed by Congress. Indeed, in modern times, presidents have actually signed some legislative bills into law, and simultaneously announced that they would interpret them in ways that did not infringe upon presidential powers. (Right now, for example, the Supreme Court is weighing what to make, constitutionally, of a decision by President George W. Bush in refusing to carry out a law passed by Congress to allow American citizens who were born in Jerusalem to list Israel on their passports as their place of birth – even though Congress had explicitly mandated that.)

When the state of Texas and 25 other states sued President Obama to challenge his announced new policy of refusing to deport between four and five million individuals living illegally in this country, the states’ strongest claim was that the President had, in fact, failed to “faithfully execute” the nation’s immigration laws – laws which, in fact, demanded that every one of those individuals be deported to their home countries. That was the basis of their argument that Obama had violated the Constitution.

If the federal judge in Brownsville, Texas, who was assigned to decide that case had accepted that argument, it would, indeed, mean that Obama had adopted an unconstitutional policy. The judge explicitly chose, in order to avoid an unnecessary decision on a basic constitutional question, not to rule on that point. Even so, Judge Hanen found a way to get at the “abdication” theory that lay behind the states’ constitutional argument.

He declared that, if the federal government owes a duty to protect the citizens of the United States from the harmful effects of illegal immigration (and he ruled that it did have such a duty, assigned by Congress), the states could bring a lawsuit to seek to compel the national government to perform that duty. In other words, they could get into court with their challenge, but not necessarily win on their constitutional argument.

Along the way, Judge Hanen used language that indicated his clear sympathy with the abdication argument, even as he refrained from finding the President’s policy to be unconstitutional. Instead, taking a legally very narrow approach, the judge decided that – at this point – it seemed clear that the states were likely to win their case ultimately on a theory that the new immigration policy was not put into place by the proper procedural route. That was not a constitutional decision, and, moreover, it was not a sign that the President had abdicated his duty as the chief enforcer of the nation’s laws. The conclusion, though, was sufficient to lead the judge to impose a temporary ban on enforcement of much of the new policy, while the states’ lawsuit moves on to a full trial.

The Obama Administration has already signaled that it will appeal the judge’s order. And, while the states surely will resist that appeal, they will not be in a position during that process to press again their claim of unconstitutional “abdication” by the President. Appeals courts are confined to reviewing the conclusions of what trial courts actually decided, not the arguments that parties made but were left unresolved.

Even so, as this legal struggle moves forward, to whatever end, Americans should be prepared to hear more of the challengers’ argument that the President has acted in a way that actually violated the Constitution – as both the Texas governor and the state’s attorney general did in their statements in praise of Judge Hanen’s ruling. Americans should recognize that as a political argument, not a constitutional one – at least in the context of this lawsuit.

Recent Stories On Constitution Daily

Constitution Check: Is the President’s new immigration policy already a constitutional dead letter?

50 interesting facts about Abraham Lincoln’s life

A controversial order leads to internment camps

Jefferson Davis and Abraham Lincoln: Dueling inaugural addresses