≡ Menu

On Obama’s Immigration Executive Order

Ilya Somin, a brilliant GMU colleague of mine from over in the law school, has a deep take on Obama’s much-talked-about executive order on immigration.  A slice:

Finally, it is worth noting that the the immigration laws covered by the president’s executive order may go against the original meaning of the Constitution. Under the original understanding, Congress did not have a general power to restrict immigration (though it did have power over naturalization). That may not matter to adherents of “living constitution” theories of legal interpretation. It also should not matter to those who believe that the Constitution generally means whatever Supreme Court precedent says it means. Immigration restrictions have been deemed permissible under longstanding precedent dating back to 1889.

But it should matter to those who consider themselves constitutional originalists, which includes many of the conservatives who have been most vehement in opposing Obama’s actions today. If you believe that the Constitution should be interpreted in accordance with its original meaning, and that nonoriginalist Supreme Court decisions should be overruled or at least viewed with suspicion, then you should welcome the use of presidential discretion to cut back on enforcement of laws that themselves go against the original meaning.

I am no fan of the Obama administration’s approach to constitutional interpretation. In too many instances, the president really has acted illegally and undermined the rule of law – most notably by starting wars without congressional authorization. But today’s decision isn’t one of them.

See also this follow-up post by Ilya.  And this post from my colleague Bryan Caplan.

Comments

Next post:

Previous post: