Obama's Abandonment of the Take Care Clause
When we recorded the newest episode of the Naked Constitution podcast, where I launched a blizzard of attacks on Adam Freedman's charmingly antiquated view of war powers, we didn't have a chance to discuss what I think is President Obama's most outrageous power grab: his effort to implement the DREAM Act through executive order.
I think that Presidents have some discretion to not carry out an Act of Congress -- when the Act itself is unconstitutional because it infringes on a President's constitutional authority or an individual right. Presidents, for example, should not prosecute people for exercising their right to free speech or obey laws that forbid them from removing insubordinate generals. But Obama's immigration proclamation makes a new, unconstitutional claim: that a President can refuse to carry out a law that everyone knows is constitutional simply because he disagrees with congressional policy.
For those interested, I've written a scholarly article to appear in the Texas Law Review this spring, which goes beyond the instant analysis of journalists and bloggers to discuss the historical roots of the President's duty to "Take care that the laws be faithfully executed" and its modern exercise.
We distinguish between the executive's prosecutorial discretion not to bring charges in an individual case and a categorical declaration that a President will not enforce a constitutional law. A President's prerogative to put aside the law would only arise, as I argue in my 2010 book, Crisis and Command, during a time of national emergency, crisis, or war -- and not over a dispute over domestic policy with Congress, where there is time for full deliberation and debate. Please download the paper, or take a look at the abstract, to read more.
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Sep '10
Re: Obama's Abandonment of the Take Care Clause
I've often been called that while relaxing with Lagavulin, an unlit cigar, and a latin text.
Mar '11
Re: Obama's Abandonment of the Take Care Clause
So, you now have a reason to invite Adam onto an episode of "Law Talk", where you can beat him up some more.
Edited on October 9, 2012 at 11:52pmDec '10
Re: Obama's Abandonment of the Take Care Clause
Leftists like Obama, on this issue, always support certain colonial powers. I have never observed a nationalistic disagreement between Americans and Central American Natives, or meztizos that are of partial Spanish colonial ancestry.
Obama pretends to be from an anti-colonial mindset, but it only appears to be anti certain colonizers. The real problem with something like the Dream Act is it serves as a pressure-relief valve for the horrible and corrupt Mexican government, used to ship potential dissidents and the unemployed, to another country. Mexico does not have a path to prosperity for those not from the hidalgo, colonialist, elite. Mexico vents its problems over our border, without the first qualm as to their exports' best interests. All they really attempt to achieve is to keep the lid down on the cauldron of dissatisfaction they have stoked for 500 years.
We are fools to pretend this is a "native" versus immigrant issue. It's just another "us versus them" issue, of the sort that leftists use to deflect unrest, all over the world.
And I say this as one born in Latin America and gratefull to be near the lamp of freedom.
Dec '10
Re: Obama's Abandonment of the Take Care Clause
To make my statement more clear, natives that are mixed with the hidalgo (pure Spanish) class, are called meztizos, and the latter often have a path towards a future. But the more purely native folks I observe in the US are the more furtive and challenged.
We often see immigrants in this country that are meztizos, but what rural Americans often see are the actual aborigines, very short and very dark. And, often, amongst my very favorite folks.
Dream Act-type programs are mostly populated by the mixed Spanish-Native folks that Mexico (and others), cannot create opportunities for, and they vent all of their sources of instability to the north. Any American colonial guilt is misplaced, when applied to those that are in the positions of power in Latin America.
We're being conned by very savvy outsiders. I don't mind, as we often get very good citizens from amongst these people, but we should have our eyes open to the blatant racism practiced in my native country.
Apr '12
Re: Obama's Abandonment of the Take Care Clause
"... I think is President Obama's most outrageous power grab: his effort to implement the DREAM Act through executive order."
Did he achieve this? How does he get away with it? Can no one challenge him? Why isn't the media reporting on this?
Feb '12
Re: Obama's Abandonment of the Take Care Clause
When I think of the "Dream Act" I remember President Bush working with Congress to put a Bill together, having Kennedy & McCain and many others work to pass it. And I remember Obama voting against it. And I am furious that once again, for political gain Obama is bypassing the Constitution and the powers he has as President to score political points. And he's doing so unchallenged by the MSM. I am grateful we have legal warriors like John Yoo to fight for rule of law. I am looking forward to reading about the "historical roots of the President's duty" to "Take care that the laws be faithfully executed" in the near future. TY.
Jan '11
Re: Obama's Abandonment of the Take Care Clause
I just finished reading the pdb. Let me strongly recommend it. I particularly enjoyed the Jefferson story; how he advocated so strongly for the observance of the law ... except when it became really important to do otherwise. (Napoleon's buyer remorse is a great little story.)
It will take some time to digest the arguments, but could we make a broad generalization? Could we say that a president is required to enforce the law except if he believes he can't, and/or that it would conflict with his other duties? His "prerogative" only extends to resolving conflicts in carrying out his duties, not to carrying out duties that he simply doesn't like. Would that be a thumbnail conclusion of the arguments here (skipping past the immigration delegation thing, which is more of an unusual circumstance to the issue)?
In any event, enjoyable reading.
Mar '11
Re: Obama's Abandonment of the Take Care Clause
John, completely agree with what you've written above, and when I have a free moment will read the paper as well. The Obama Justice Dept has been startlingly willing to completely disregard lawfully enacted statutes that it disagrees with, and to seize and delegate extensive powers to regulatory agencies (EPA especially) via executive order. If you address the following question in your paper, disregard it, but: if all three branches have a duty to consider the Constitutionality of legislation (not just the Court) in going about their duties (the Executive especially in how it interprets the broad authority Congress often grants to agencies), how can we ensure that we don't simply have a paper barrier protecting us against the abuse of this authority a la Obama going forward?
Sep '10
Re: Obama's Abandonment of the Take Care Clause
I guess you believe Bush's failure to enforce the same immigration laws that Obama is not enforcing was a matter of incompetence and not deliberate. Even Bush was not that incompetent. Obama was able to buy more votes by being more above board in his approach. Bush found it politically more profitable to be more covert and both men found it easy to find lawyers willing to prostitute themselves and say they were/are doing nothing wrong. Both men and the lawyers they hired abused their offices.
Apr '12
Re: Obama's Abandonment of the Take Care Clause
Pseudodionysius
I've often been called that while relaxing with Lagavulin, an unlit cigar, and a latin text. · 15 hours ago
What an image: Big Bird relaxing with Lagavulin, an unlit cigar, and a latin text!
Better still! Big Dicky Bird Obama relaxing ... etc.! Charmingly antiquated, and on his way OUT! Dicky Bird having a "dicky bird", meaning a meltdown.
Jul '10
Re: Obama's Abandonment of the Take Care Clause
I supppose that you being a law professor of some note requires that you write this kind of dissertation. From a purely lay point of view, however, I find simply that this administration has been grossly negligent in its performance of duty. Its justice department has harassed innocent individuals, its head has openly and brazenly refused to c0mply with Congress' rightful, if sometimes irksome, demand for oversight, there has been inappropriate suits against states for things like supporting the federal immigration law, refusal to pay subsidies to illegals, and attempting to make the voter process legal and less open to "Chicago fraud" (as a current joke notes, we now have proof of death of Bin Laden and Hussein - they have both recently registered to vote in Cook County). And that's only speaking of DOJ. We have yet to touch upon Treasury and State.
I suppose the more pertinent question is why there is no outcry to impeach this president.
Edited on October 10, 2012 at 4:10pmRe: Obama's Abandonment of the Take Care Clause
Pseudodionysius
I've often been called that while relaxing with Lagavulin, an unlit cigar, and a latin text. · 17 hours ago
Hey, I'm still high on the fact that John called me (or my views) charming. John's piece is terrific. On the immigration matter, I am in complete agreement with John. The pseudo or "mini" DREAM Act is the most egregious violation of presidential duty, but not far behind is the president's decision to squander the DOJ's resources on suing Arizona for trying to enforce immigration law.
Sep '10
Re: Obama's Abandonment of the Take Care Clause
I prefer "mini" DREAM Act as the use of the word "pseudo" in a non military context is a violation of my current royalty agreement with Geffen Records, which requires me to pillage Ricochet coffers every time it is used.