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Immigration policy and the rule of law I

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Scott addressed the most glaring flaws with Damon Linker’s column the other day, but I want to discuss another one: his invocation of his commitment to “the rule of law” as a reason to oppose this executive action:

The rule of law is far more about how things are done than about what is done. If Obama does what he appears poised to do, I won’t be the least bit troubled about the government breaking up fewer families and deporting fewer immigrants.

As Scott said, this doesn’t stand up to scrutiny first and foremost because the case that Obama is operating outside the law is simply incorrect, as Russell Arben Fox, who holds a view congenial to Linker’s, has acknowledged in comments. But there are additional reasons to be troubled by it. I confess I’m increasingly dubious of the way the rule of law is used in political debates; Judith Shklar’s observation that the rule of law “may well have become just another self-congratulatory rhetorical devices that grace the utterances of Anglo-American politicians” rings true to me, especially with an “and pundits” added. But let’s consider it more carefully. The conception of the rule of law advocated here is one that appears to only apply to how the different parts of government relate to each other, and not how the government relates to the governed. This is consistent with an old and venerable tradition—one that predates liberalism and democracy—in ‘rule of law’ thinking; that the rule of law is satisfied when the monarch (and his agents) operate in a manner consistent with the law, whatever that may be.

But the rule of law is an essentially contested concept, and there are other uses of it in circulation. In a liberal and democratic world, we have some very good reasons to care about how the law governs not just the interaction of different parts of government with each other, but how it shapes the interactions of the different parts of government with the governed. Jeremy Waldron:

There may be no getting away from legal constraint in the circumstances of modern life, but freedom is possible nevertheless if people know in advance how the law will operate and how they have to act if they are to avoid its having a detrimental impact on their affairs. Knowing in advance how the law will operate enables one to plan around its requirements. And knowing that one can count on the law’s protecting certain personal property rights enables each citizen to know what he can rely on in his dealings with other people and the state. The Rule of Law is violated, on this account, when the norms that are applied by officials do not correspond to the norms that have been made public to the citizens or when officials act on the basis of their own discretion rather than norms laid down in advance.

On this account, it is difficult to square existing immigration law with the rule of law: it authorizes the deportation of many millions of current settled residents, while a) explicitly authorizing significant administrative discretion, and b) only appropriating the resources for a small fraction of those eligible to be deported in any given year. As Ilya Somin puts it,

To the extent that the rule of law is in jeopardy here, it is because the scope 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.

In other words: when statutory law is simply too vague, broad, or general to authorize a predictable pattern of governance as written, the rule of law is enhanced when administrators prioritize and systematize with administrative law, assuming they do so in a manner consistent with the spirit and general intent of the law and other constitutional norms.

I’ve written about Joe Carens excellent work on the political theory of immigration here before. One of his smarter pieces of non-ideal theory is this defense of what he calls the ‘firewall’ requirement for states that have a population of irregular migrants. Carens assumes for the sake of argument that states have the right to deport such individuals. However, insofar as they’re not deporting them, they ought to have a number of basic legal rights and protections in common with residents in general. This can be framed as a matter of basic human rights, as Carens does, but it’s also a rule of law issue—for one’s life to be governed predictably by law one must have access to the parts of the state that provide for various protections. But the threat of deportation cuts of access to what the rule of law provides:

The fact that people are legally entitled to certain rights does not mean they actually are able to make use of those rights. It is a familiar point that irregular migrants are so worried about coming to the attention of the authorities that they are often reluctant to pursue legal remedies and protections to which they are entitled, even when their most basic human rights are at stake….States can and should build a firewall between immigration law enforcement on the one hand and the protection of basic human rights on the other. We ought to establish a firm legal principle that no information gathered by those responsible for protecting and realizing human rights can be used for immigration enforcement purposes. We ought to guarantee that people can pursue their basic rights without exposing themselves to apprehension and deportation.

Carens’ firewall does not, unfortunately, exist (although many municipal governments have moved in this direction) and Obama’s executive order doesn’t create it. But for those eligible, it contributes to the same goal; it makes it more possible and likely that they’ll have reasonable access to the predictability and protections that the rule of law affords.

While we can acknowledge its important role in the history of the concept, it’s difficult for me to see any good reason for the use of a strictly formal concept of the rule of law indifferent to the nature of government/governed interaction today. It is the character and quality of those interactions that cause me to care about government in the first place. Linker’s clumsy attempt to use the rule of law against the Obama administration in this case highlights the shortcomings of that particular version of the concept.

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  • Snarki, child of Loki

    The “Rule of Law” well was poisoned in Nov-Dec 2000 by the Brooks Brother’s riot to stop vote recounting, and the Supreme Hax getting their nose into a case where they have zero constitutional authority.

  • Joe Bob the III

    What bothers me about the ‘rule of law’ diatribes is that they veer quickly into more dangerous rhetoric. The other reactionary keywords associated with Obama’s executive order are lawlessness, tyranny, impeachment and imprisonment. All of these words have been uttered in the past week not just by your typical right-wing bloviators, but by members of Congress.

    You take mainstream political figures calling the President a tyrant, take the Tea Party favorite about “watering the tree of liberty…” and you’re only one step away from explicit calls for political violence. Barack Obama isn’t the person playing with fire, it’s people like John Boehner.

    • Joe_JP

      Yes, such foaming at the mouth seems a tad ironic.

    • efgoldman

      not just by your typical right-wing bloviators, but by members of Congress.

      These days, aren’t they the same people?
      After all, even before the Birchers took over the GOBP, nobody bloviated like a congresscritter or senator.

  • djw:

    I’m not persuaded that “rule of law” is as problematic as you say. I’m sure there are other issues, but the first few seem to me not to be that decisive:

    1. “Rule of law” meant something different in medieval times than it does today, when it’s part of the common vernacular–the ability of people to understand the law and expect that the representatives of government will act according to the law. But contemporary literature presumably uses the contemporary definition.

    2. I’m generally suspicious of arguments that sound too much like, “people use this term in different ways, therefore it’s merely rhetorical (emotional, etc.).” It may be true in this instance, but it seems like a cop-out. In papers where I’ve seen it used, it tends to cut off debate into why people are using the word in particular ways, what they mean by it, its history, all the circumstances surrounding its use in practice, and at best (not always) to move debate to the level of ulterior motives or psychologizing or ideology.

    3. No one seriously thinks statutes should be written at the level of detail a computer would need. Even if they were, it would be impossible to decide which cases fall into which categories using only computer-like instructions. That’s not even considering details that are, for example, too time- or circumstance-specific to be put into the statute, that have to be decided closer to the time of action. Yet when people deplore discretion and talk about statutory spelling-out of p’s and q’s, they seem to me to have computer-level logic in mind, or at least criteria that could only be satisfied by computer-level logical detail. I may be unaware of important arguments. But it’s not surprising that it could sometimes take work for observers to hook government actions up to the letter of the statute.

    4. I’ve been reading Damon Linker for a while (and I don’t think I’m even confusing him at this point with Daniel Larison). I find it difficult to imagine him actually deploring discretion. He seems, instead, to think statutes say something beyond what the text says, which he finds obvious, but which for some reason (irony alert) lots of people seem to think isn’t what the text says.

    I know the above sounds naive. Maybe it’s totally off-point and irrelevant. I’m most unsure, myself, about the issues involved in 3. But these seem to me to be serious obstacles to taking arguments like Linker’s seriously.

    • djw

      Your option #2 presents two extreme alternatives that I reject; I was serious when invoked essentially contested concepts as a framework for thinking about different conceptions of the rule of law; I’m pretty close to an unreconstructed Gallie-ite in my approach to such concepts. Contra #1, I think there’s a variety of overlapping but distinct conceptions of the rule of law in circulation, which for the most part can be placed on a substantive/procedural axis (Tamanaha’s book is excellent on this). For internally complex, evaluative concepts that have both normative and empirical meanings, the two options you present (one right definition or nothing but rhetorical device) aren’t adequate for understanding the concept.

      As for #4 I don’t think he’s generally as disdainful of discretion as he is in this column, but I’m responding to this column.

      • On 2: OK, thanks for the reply, and the reference. I was reacting mainly, I guess, to the quote from Shklar, who I think was writing in the era when I used to see that kind of argument (in humanities, mostly, not social science). Maybe I’ll put her book on the list of dead-tree books I buy myself this time of year. I do worry that at times “one right definition, everything else simply in need of correction” is going to be seen as the underlying default.

        I was curious about the arguments I might be missing in 3, but maybe that will be in your next post.

        • djw

          If fairness to Shklar, she goes on in that essay to try to reclaim some value for the concept from contemporary political misuse. I’m a big fan of hers in general, although the rule of law essay is fairly minor. Her negative concepts stuff is more interesting. I wrote a bit about some of that in another context here.

          Regarding #3 I’m in broad agreement with what i think you’re suggesting. The administrative state is just something a lot of political and legal theory doesn’t deal with well.

          • Jordan

            If you ever want to write a little more about “essentially contested concepts” and how you think that should play out … well, you would have at least *one* fascinated reader (from a different background that also is quite involved with concepts) out there.

            • djw

              I thought I’d done that at some point, but a quick search of the archives reveals nothing. Consider it in the notional post que.

            • Hogan

              Here’s an unpaywalled article that discusses it in connection with “rule of law.” I offer no guarantee as to its quality.

              I remember that when I first encountered the notion of “essentially contested concepts,” it quickly organized a huge amount of stray material in my head. That’s a rare experience for me, and intellectually one of my favorites.

              • Jordan

                Reading the abstract/looking at the footnotes, seems legit. Thanks.

                (I have, basically, access to all the paywalled academic journals ever too. So if there is one or two of those you have up your sleeve as well, I’d appreciate it).

                • Hogan

                  That was the luck of Google–the second search result happened to be both free and on point. I just wanted people to have something to nibble on while djw prepares the entree.

              • djw

                The Collier^2 piece is probably one of the most half dozen or so worthwhile things written on the concept.

                it quickly organized a huge amount of stray material in my head.

                Yeah, exactly. I was flailing pretty hard on trying to say something interesting or useful about conceptual ambiguity (with respect to ‘democracy’) early in the dissertation process; my advisor said “here, read this” at exactly the right moment.

    • No one seriously thinks statutes should be written at the level of detail a computer would need.

      No doubt, but: isn’t reading the statute as if it were an algorithm exactly the technique conservatives constantly use to undermine what they don’t like, as in the argument about the delayed implementation of the employer mandate in the Affordable Care Act or even the “Moops” argument? Doesn’t Scalia’s “originalism” basically consist of pretending the Constitution is a program that can get only one unambiguous result in its application to the input of a given case? They may not take it seriously, in the sense that it can’t survive serious examination, but they use it every chance they get and then people like Bruce Ackerman feel obliged to take it seriously. I think this is a really valuable analogy.

  • Russell Arben Fox

    This is a thoughtful challenge, David, one that I’m going to have to think about (and perhaps Damon will too). I don’t have the time at present to respond in a way that you deserve, but I suspect, as I work out a fuller response in my head, that it will revolve around a point that I made in my most recent post on the topic (as well as my more detailed earlier one): namely, that I think when we speak of “constitutionalism,” we are inevitably speaking of a very specific, even (to use your words) “strictly formal,” rule of law concept revolving almost wholly around “the interaction of different parts of government with each other,” an interaction that has both technical (statutory) and procedural (norms and assumptions regarding timing and boundaries) elements to it. My point has always been that Obama has been forced/invited/incentivized to take unconstitutional actions–but I don’t think in making that point I have ever claimed that his executive action was unlawful in the richer, Waldronian concept of the rule of law which you lay out here. In other words: when I say that I think Obama’s actions are unconstitutional, I’m not necessarily saying that I think he has violated the rule of law overall, because I think our particular variety of liberal constitutionalism has itself made–as I think you correctly demonstrate in the particular case of immigration policy–made any employment of the rule of law more broadly (that is, particularly vis-a-vis the democratic governance of citizens) highly difficult, if not in some cases actually impossible.

    • djw

      when I say that I think Obama’s actions are unconstitutional, I’m not necessarily saying that I think he has violated the rule of law overall, because I think our particular variety of liberal constitutionalism has itself made–as I think you correctly demonstrate in the particular case of immigration policy–made any employment of the rule of law more broadly (that is, particularly vis-a-vis the democratic governance of citizens) highly difficult, if not in some cases actually impossible.

      I see what you’re saying here, I think, and it suggests some daylight between your position and Damon’s. I’m still looking for that concrete, specific feature of Obama’s plan that places it outside the established tradition of executive action on immigration, though.

      I’m also curious (my planned part II will have more to say about this) if you’ve given much thought to what role administrative law and rule-making play in your vision of ideal constitutional governance. Even accounting your affection for localism I never would have pegged you as a sympathizer for the Epstein-style “the administrative state is unconstitutional” arguments, but the strong negative reaction you’re having to discretion exercised above the case-by-case level has me wondering if I’m mistaken about that.

      • I’m still looking for that concrete, specific feature of Obama’s plan that places it outside the established tradition of executive action on immigration, though.

        This is really owed at this point. As I think I exhaustively showed in the prior thread, the NYT article doesn’t actually provide any examples of serious people seriously (or at least obviously) saying that the order was unconstitutional in any sense, including the person Russell cites.

        • Ok, I read your blog posts and they are pretty thin esp the Douhart echoing one since Douhart is at best thin and, from what I can tell, just being hacky.

          My first marker: anyone who complains about the numbers involved and doesn’t mention percentages, level of funding, or the comparable Bush senior order just is full of crap.

          My second marker: anyone who site norms, etc without citing specific norms being violated is also not serious. If you appeal to your own judgment as one of the “judgement” a la Douhart then you lose, too.

          My third marker: If you babble on about constitutionalism without separating out impeachable acts from “damaging” ones *in this climate* you aren’t serious.

          • djw

            anyone who site norms, etc without citing specific norms being violated is also not serious.

            Yes, this is a good question. Aside from the issue of whether this is a departure from traditional executive power, what, precisely, is the norm being violated, given that significant discretion about who to deport is obviously well within existing norms?

  • shah8

    Much of this blog post has further applications to issues other than immigration…just saying…

    • Manju

      Yeah, like how does this apply to Jude Law? Does the rule of Jude Law affect Sadie Frost? If so, is it really the Rule of Hey Jude Law when she’s Sexy Sadie?

      Inquiring minds want to know.

      • shah8

        Well, the Waldron forward is highly revelent to the contest between California administration of jails and the judges that think overcrowding has to be reduced.
        This quote:
        On this account, it is difficult to square existing immigration law with the rule of law: it authorizes the deportation of many millions of current settled residents, while a) explicitly authorizing significant administrative discretion, and b) only appropriating the resources for a small fraction of those eligible to be deported in any given year.

        Is highly relevant to a contest like that which is going on California, and it’s relevant today in the way the specific un-definition and under-funding are used to shape expectations between the state and the public at large, expectations forcibly including “lack of standing”, and thus forces “unconstitutional” behavior to restore any norms once assumed sacrosanct. We’re going to see more of this, and I wouldn’t be surprise is this specific angle starts being focused on by reformers at some point, because of how utterly dysfunctional it makes governance.

        • djw

          Absolutely agree.

      • IM

        Jude Law

        what kind of antisemite are you?

  • Joe_JP

    RAF in those comments noted:

    constitutionalism is more than statutes; it’s also norms, assumptions, precedents, etc. And this action violates a good number of those. As many as the Republicans in Congress who forced this mess have violated? Not nearly. But the fact that his political opponents have trashed the Senate does not, in itself, change what is obviously a rather, shall we say, impressive expansion of presidential authority into something else

    Things like “norms, assumptions, precedents” are complicated and the thread suggests it is quite arguable how much he “violated” them here or “shall we say impressive expanded” them. But, debate away. I note though he STILL says that Obama did “not nearly” do as much as the Republicans in Congress. In effect, even he while making a claim disputed by various experts (for discussion, see, e.g., Balkinization), suggests Obama was “forced” here and did something less wrong than those doing the forcing. So, you know, Republican critics generally not be taken seriously.

    A similar argument was made by Prof. Dorf and Buchanan in respect to the debt cliff diving some Republicans wish to do — see Dorf on Law — where the duo argues that the “least unconstitutional” thing to do is for the President to ignore the debt ceiling, not pick and choose what spending to do. Dorf also has more on this specific matter at his blog.

    Anyway, TL;DR, even if one takes the person here seriously, he is saying Obama is breaking the norms etc. LESS than the Republicans and basically is being forced into it. Unless I’m misreading him. You know, pass the damn bill.

    • rea

      “Norms, assumptions, precedents” is a lot of woo. How did it violate the Constitution? “Oh [waving hands] “Norms, assumptions, precedents!”

      • Joe_JP

        I won’t go that far. Bush firing those attorney generals, e.g., was deemed a violation of such things, but it wasn’t as a whole “unconstitutional.” Nor, was Republicans filibustering etc. likely “unconstitutional” (though a few claimed it was), but the fact they upped it to ’11’ — that is, violated previous norms, assumptions & precedents just wasn’t deemed a bunch of woo. Because “norms, assumptions, precedents” do matter. The same applies to how certain justices act, even if it isn’t “unconstitutional.”

        • Jordan

          Yeah, ultimately, a *great deal* of what we do depends on norms, assumptions and precedents. This is true in basically every facet of life (whether politics, work, the family, the community, etc).

          The alternative, I guess, is insanely byzantine contracts that only the worst lawyer could love, really. You can reject specific norms, assumptions and precedents as harmful, obviously. You can note that other agents are already rejecting those norms, and so it doesn’t make sense to stick to them yourself.

          But the the idea that “norms, assumptions and precedents” are “woo” is a silly notion that has a deeply naive, overly formalist view of how … well just about everything works.

          • I think their use here is just woo.

            It’s pretty obvious that the norm being violated is that black democrats shouldn’t be president. And that’s pretty much it.

            Dressing that up with fluffiness about constitutionalism doesn’t change the facts on the ground. It’s esp. obnoxious is a context where people are talking impeachment.

            • Jordan

              Their use here certainly seems illegitimate. Mostly because it seems the only norm being violated is that black democrats shouldn’t be president, as you say. Maybe there is some norm like “don’t take major executive actions that are rejected by the opposition party”. But I dunno about that, and its obviously been violated before, and recently.

              Maybe I just have an overly internet-infuenced understanding of “woo” or maybe I just read too much into rea’s comment. But it was in response to Joe_JP’s comment, which made me read rea’s comment as being about “norms, assumptions and precents” in general. And thats not woo.

              • Well, I read rea as specifically talking about the unconsitutional-in-the-sense-of-impeachable-or-even-in-the-sense-of-being-a-giant-expansion-of-execuative-authority use. For that, we’re all in agreement, I think.

                What makes it all interesting is that this order is a pretty straightforward use of well established authority somewhat judiciously exercised. At least, I’ve not heard a case, even the skeleton of a case, otherwise.

                (And I leave my markers above. No one gets a hearing from me until they address those points.)

                • Josh Blackman’s discussion (which engages with the Admin’s discussion) is serious at least with respect to the low bar I set above. Very little has to do with the raw number of people affected.

                  Interestingly we see, with respect to “President Obama’s 2012 Deferred Action for Childhood Arrivals:

                  Despite paying lip service to discretion, according to a Brookings report, only 1% of applicants were denied deferrals. I could not find any explanation for why, under the capacious standards set by DHS, the denial rate was even this high. A 1% denial rate seems awfully close to “automatic” relief.

                  I’m a bit surprised at the tension in this paragraph: If his reading of the standards were such that he’d expect an denial rate lower than 1%, then prima facie that 1% denial rate is evidence that the relief is *not* automatic.

                • Jordan

                  I mean, its a straightforward use of well established authority in the sense that it has been done before, more or less.

                  Just on a smaller scale and in a more targeted manner, before.

                  So, both of those variables are ones that push against the norms that came before.

                  I mean, I’m glad Obama did it. But I maintain that there are *no* institutions that can work, ever, without “norms, assumptions and precedents”. Thats all I am really saying. That is how institutions work.

                  That said, it isn’t like Congress works now, so maybe its just already at the totally broken point.

            • Joe_JP

              norm being violated is that black democrats shouldn’t be president

              You might want to stick with your previous well appreciated in depth discussion of the weakness of the opposition as compared to the idea that somehow they won’t put forth this shit [I say this advisedly — the argument and invective is repeatedly not worth taking seriously except for its negative effects.]. if Hillary Clinton was President. It comes off as lame.

              • Jordan

                Well, Hillary Clinton is sui generis. But you honestly think that if a fast-rising charismatic white democratic senator from Illinois had bested Hillary in 2008 it would be like this?

                I mean, there would be insane hatred, obviously. But this?

                • Oh, I think so. The real question is the particular form.

                • Jordan

                  Thats interesting, and quite possibly true. I usually agree with this sort of argument, but I think there is a really race-specific factor here that wouldn’t be present for an otherwise similar (ok, haha, whatever) white person.

              • You might want to stick with your previous well appreciated in depth discussion of the weakness of the opposition as compared to the idea that somehow they won’t put forth this shit [I say this advisedly — the argument and invective is repeatedly not worth taking seriously except for its negative effects.]. if Hillary Clinton was President.

                That would be well taken advice if I had said anything about Hillary Clinton. But I didn’t. If Hillary in charge then the norm would probably be something like women democrats shouldn’t be president. Which, of course, is all part of the overarching norm that democrats shouldn’t be president.

                It comes off as lame.

                I feel ok, then!

  • Cheerful

    Is there a question of whether prioritization within large executive discretion verges into law making in a way we find uncomfortable even if not against a specific statute.

    An example that occurs to me is speeding. 99% of the cars on a freeway are driving faster than posted limits (at least outside traffic jams). Right now we expect, I think, cops to pull over the most flagrant violators and otherwise operate on a semi random basis. We do not finance enough cops to pull over all speeders and it’s not clear we would them to. And as long as cops are not using forbidden criteria, like race or religion, to make traffic stops, they are in the clear.

    But what if they used nonforbidden criteria – if the governor of a state announced that from now on the state patrol would focus on speeding by gas guzzlers and SUV’s as a way of combatting climate change? Still within the general rules of executive discretion but closer to announcing a new rule of generally applicable behavior. We don’t really expect a governor to do this but I am not sure why it would be illegal.

    To the extent that is the conservative concern with Obama’s action my response would be that 1) Congress is free to pass a bill to restrict executive disretion or redirect it and 2) Obama’s use of discretion in this instance is arguably in line with the general principles of keeping families together – more so than the hypothetical governor’s actions, which uses principles arguably outside the policy re speeding (save of course to the extent speed limits are there to conserve gas)

  • liberal

    About the immigration debate itself, it’s a complete joke. It’s obvious that if you want to cut down on illegal immigration, you’d go after the employers with draconian sanctions. All the claptrap about coming down hard on the immigrants themselves is a twofer: makes the immigrants even that much more beholden to their employers, and throws the racist right a nice juicy bone.

    Re the executive discretion crap, who the f*ck do the critics of Obama think they’re fooling?

  • mud man

    The “Rule of Law” invokes the posiivist fallacy that anything can be completely and accurately described … Bianca’s #3 except that it’s worse than that. What’s really wanted is a “Rule of Good Order” that calls for respect for all persons and reasonable grounds for doing business, as dkw very justly says, current immigration law doesn’t do that. Justice demands interpretation which demands relationship, not cut-and-dried procrustiana. This is not just a problem for immigration law, it everywhere underlies state-level industrial societies.

  • Joe_JP

    SNL used this for comic effect last night though in a simplistic slanted way that would work better on FOX News:

    http://www.washingtonpost.com/blogs/the-fix/wp/2014/11/23/how-a-bill-really-becomes-a-law-courtesy-of-saturday-night-live/

    I put aside that here the Senate passed a bill thru the filibuster “norm” and the House leadership refused to put it up to a vote. Obama didn’t simply submit an executive order. He based it on existing law, which led him to limit it breadth in ways that some find troubling.

    I realize this is a comedy program & a bill falling down a flight of stairs is amusing & all, but if you want to make humor about the felt excesses of executive power and the way governing really works, there are probably other ways to do it. As is, this does suggest how this will be spun by some.

  • Vladimir Putin is a great fan of the “rule of law”, in the special sense of “the will of the Russian monocrat”. That doesn’t make it a bad idea, just one open to abuse.

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