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.