Obama's Immigration Move Marks an Unprecedented Stretching of the Constitution
President Obama's claim that he can refuse to deport 800,000 aliens here in the country illegally illustrates an unprecedented stretching of the Constitution and the rule of law. He is laying claim to presidential power that goes even beyond that claimed by the Bush administration, in which I served. There is a world of difference in refusing to enforce laws that violate the Constitution (Bush) and refusing to enforce laws because of disagreements over policy (Obama).
Under Article II, Section 3 of the Constitution, the President has the duty to "take Care that the Laws be faithfully executed." This provision was included to make sure that the President could not simply choose, as the British King had, to cancel legislation simply because he disagreed with it. President Obama cannot refuse to carry out a congressional statute simply because he thinks it advances the wrong policy. To do so violates the very core of his constitutional duties.
There are two exceptions, neither of which applies here. The first is that "the Laws" includes the Constitution. The President can and should refuse to execute congressional statutes that violate the Constitution, because the Constitution is the highest form of law. We in the Bush administration argued that the President could refuse to execute laws that infringed on the executive's constitutional powers, particularly when it came to national security -- otherwise, a Congress that had a different view of foreign policy could order the military to refuse to carry out the President's orders as Commander-in-Chief, for example. When Presidents such as Jefferson, Jackson, Lincoln, and FDR said that they would not enforce a law, they did so when the law violated their executive powers under the Constitution or the individual rights of citizens.
The President's right to refuse to enforce unconstitutional legislation, of course, does not apply here. No one can claim with a straight face that the immigration laws here violate the Constitution.
The second exception is prosecutorial discretion, which is the idea that because of limited resources the executive cannot pursue every violation of federal law. The Justice Department must choose priorities and prosecute cases that are the most important, have the greatest impact, deter the most, and so on. But prosecutorial discretion is not being used in good faith to cancel all prosecutions of an entire class of federal laws. A President cannot claim discretion honestly to say that he will not enforce an entire law -- especially where, as here, the executive branch is enforcing the rest of immigration law.
Imagine the precedent this claim would create. President Romney could lower tax rates simply by saying he will not use enforcement resources to prosecute anyone who refuses to pay capital gains tax. He could repeal Obamacare simply by refusing to fine or prosecute anyone who violates it.
So what we have here is a President who is refusing to carry out federal law simply because he disagrees with Congress's policy choices. This is an exercise of executive power that neither the most stalwart defenders of an energetic executive -- nor the Framers -- can support.
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Jun '10
Re: Obama's Immigration Move Marks an Unprecedented Stretching of the Constitution
I think for Obama, this is just a way to change the subject. You might have a hard time proving that DHS, or any other agency, changed its activity level. This is to get conservatives to talk about something other than economic charts, I think.
Sep '10
Re: Obama's Immigration Move Marks an Unprecedented Stretching of the Constitution
I wonder if this is an election year ploy. The idea would be to that the move is so flagrantly improper that it will induce a vehement GOP response -- a response more driven by concerns over constitutional questions than policy ones -- then the Obama campaign and the press (but I repeat myself) will depict the move as a "War on Hispanics."
Nov '11
Re: Obama's Immigration Move Marks an Unprecedented Stretching of the Constitution
Yes, but... he's also setting a precedent. He's sending a challenge to cause a distraction, but the challenge is still there. At very least, it's the smartest thing he's done in recent weeks.
Jan '11
Re: Obama's Immigration Move Marks an Unprecedented Stretching of the Constitution
Yes. Impeachment.
Dec '10
Re: Obama's Immigration Move Marks an Unprecedented Stretching of the Constitution
Unfortunately, the supporters neither care about an energetic executive, nor the Framers. It is just sad when people pretend that this is a fair contest with rules agreed to, in advance.
The only people concerned about rules are those that wish to conserve the tradition of rules. Half the people in this country have no such concern.
Aug '10
Re: Obama's Immigration Move Marks an Unprecedented Stretching of the Constitution
John Yoo:
Under Article II, Section 3 of the Constitution, the President has the duty to "take Care that the Laws be faithfully executed." This provision was included to make sure that the President could not simply choose, as the British King had, to cancel legislation simply because he disagreed with it. President Obama cannot refuse to carry out a congressional statute simply because he thinks it advances the wrong policy. To do so violates the very core of his constitutional duties.
So what? Who's gonna fire him?
The President is an employee. Like any employee, if he cannot be fired then there's no way to make them do their job.
Is Congress going to impeach him over this? Ha!
Oct '10
Re: Obama's Immigration Move Marks an Unprecedented Stretching of the Constitution
This seems to go to Rob Long's point that Congress is becoming irrelevant. I wonder if anyone over there in either house is really getting this.
Oct '10
Re: Obama's Immigration Move Marks an Unprecedented Stretching of the Constitution
Yes, this is my thought - Congress' irrelevancy would seem to be a bipartisan issue....do Dems in Congress not understand the implications? Or, I guess, is the ramming through of their agenda so important they don't really care? I have a feeling there are 1) enough Republicans who would like to deal with illegal immigrant children who are not responsible for the actions of their parents and 2) Dems who resent being made irrelevant, that a similar bill could get passed in Congress? Why not pass a bill that is similar but slightly different, to rebuke the Pres and assert Congressional dominance regarding legislation?
Mar '11
Re: Obama's Immigration Move Marks an Unprecedented Stretching of the Constitution
The Congress is obligated to push back in some way. One would think there are a few Democrat Senators who did not like having their legislative duties usurped today.
Apr '11
Re: Obama's Immigration Move Marks an Unprecedented Stretching of the Constitution
I get the feeling President Obama views legislation (presumably including that which he has signed in to law), as merely an amicus brief from an interested party with no standing. While it may be considered, it could as easily be dismissed as irrelevant.
Nov '11
Re: Obama's Immigration Move Marks an Unprecedented Stretching of the Constitution
Ignorant legal question: is there some way this could be challenged in court? Does anyone have standing to sue?
Oct '10
Re: Obama's Immigration Move Marks an Unprecedented Stretching of the Constitution
I think this might be exactly right. Very astute.
May '10
Re: Obama's Immigration Move Marks an Unprecedented Stretching of the Constitution
If a President doesn't think a law passes Constitutional muster, let him challenge it before SCOTUS. Isn't that the role of the Judicial branch?
Or are you seriously telling us that Presidents should be assumed to be more trustworthy than legislators? Why should one have the power to unilaterally suspend prior laws and not the other?
Oct '10
Re: Obama's Immigration Move Marks an Unprecedented Stretching of the Constitution
Aaron Miller
Or are you seriously telling us that Presidents should be assumed to be more trustworthy than legislators? Why should one have the power to unilaterally suspend prior laws and not the other?
The Constitution gives the President that power. It's part of his oath of office. The three branches of gov't are coequal and no one is given the power to be the final arbiter of what the Constitution says. This was understood early on in U.S. history but it's been forgotten/ignored in our time. Each branch is required to uphold the Constitution and that presumes they understand it and interpret it. If not, then the separation of powers and checks & balances go out the window.
Oct '10
Re: Obama's Immigration Move Marks an Unprecedented Stretching of the Constitution
jhimmi
Yes, this is my thought - Congress' irrelevancy would seem to be a bipartisan issue....do Dems in Congress not understand the implications? Or, I guess, is the ramming through of their agenda so important they don't really care?
I'm not sure that Democrats are enthusiastic about Obama anymore, even though they still believe in their agenda. More than anything else, Obama is concerned with his own future and legacy and has shown he's willing to sacrifice even his own party for his own sake. He's not a team player. He's more like an arrogant superstar who thinks that the team exists to allow him to score the points and get the MVP trophies.
May '11
Re: Obama's Immigration Move Marks an Unprecedented Stretching of the Constitution
Albertina
The President is not concerned with legality or constitutionality. All that matters is that for the next five months he be seen as the friend and benefactor of young Hispanics, and can portray all GOP opposition as callous, bigoted, anti-immigrant~ as Mack The Mike says, a "war on Hispanics".
Dec '10
Re: Obama's Immigration Move Marks an Unprecedented Stretching of the Constitution
Yes. So let's not rise to the bait. I think we should note this sad, craven pandering at every opportunity, but only as an aside while we focus on the main issue, what a disaster Obama has been on the economy.
May '10
Re: Obama's Immigration Move Marks an Unprecedented Stretching of the Constitution
I find the timing of this strange considering the big scandal involving DHS and ICE that's been in the news lately. Why would the White House shine a big spotlight on immigration policy when five ICE employees, including a former Acting Director of Intelligence for ICE, are going to federal prison for defrauding taxpayers out of over $500,000? I know it's chump change, but if these guys have been busy cooking up fraudulent travel vouchers for a couple of years, who's been minding the store?
Jan '12
Re: Obama's Immigration Move Marks an Unprecedented Stretching of the Constitution
Professor Yoo,
What is your take on Andrew Jackson's (infamous) reaction to Worcester v. Georgia? Do you see anticipations of later presidential hybris?
Mar '11
Re: Obama's Immigration Move Marks an Unprecedented Stretching of the Constitution
And THIS is why I favor a stronger Congress over a President. In Congress it takes a lot of votes to get something done. This is old-fashioned Caesar stuff here.