Respect for our constitutive system can be as important as positive constitutional law. Positive constitutional law is written and, if a plaintiff has standing, is likely to be enforced by the judiciary. Our constitutive system, by contrast, is either unwritten or at least unenforced by the judiciary. Order in this system is maintained by the statesmanship of the political branches.
Peter Schuck, a supporter of the President and proponent of immigration reform, has ably articulated the problems of the President’s executive order on deportations as a matter of positive law. But whatever its positive legality, the President’s decision to defer the deportation of millions of undocumented immigrants does not respect our constitutive system.
