The Lawful Neutral Case for Deferred Action
If life were classic Dungeons & Dragons, many opponents of immigration would be Lawful Neutral. The law is the law; good or bad, everyone has to obey the rules. In his defense of Obama’s deferred action policy, Ilya Somin points out that Lawful Neutral Americans should favor non-enforcement of U.S. immigration restrictions because they’ve been unconstitutional from the get-go. The Constitution only gives the federal government control over naturalization, not migration:
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.
But the Supreme Court has ruled otherwise for over a century? That’s hardly surprising given the tight correlation between what the Justices personally favor and what they imagine a two-hundred-year-old document says.