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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Oct '10
Re: Obama's Immigration Move Marks an Unprecedented Stretching of the Constitution
Oct '10
Re: Obama's Immigration Move Marks an Unprecedented Stretching of the Constitution
Thanks for this great post, John. Can anything be done to reverse this decision?
Feb '11
Re: Obama's Immigration Move Marks an Unprecedented Stretching of the Constitution
John, I wish you'd comment specifically on how this Obama executive order differs from the one allowing non-citizens serving in the military to apply for citizenship immediately rather than waiting the previous 3 years. (See SooperMexican's post on the members page.) Was there already language in the relevant legislation that allowed this discretion?
Feb '12
Re: Obama's Immigration Move Marks an Unprecedented Stretching of the Constitution
I would think nobody has standing here. Is any particular individual suffering a harm that can be pinpointed? Higher school taxes doesn't count. I think the Mexican boy next door being noisy probably doesn't count either.
Thus, the response lies with Congress. Congress wouldn't want to defund immigration enforcement. But Congress could defund the White House cooking budget or something. Impeachment would be appropriate too.
Prosecutorial discretion is a worrisome subject. If Obama had simply stopped enforcing immigration enforcement, he would be in a stronger legal position, using the argument that in every single case he didn't think it was good use of resources. Prosecutors do that all the time with categories of crimes, e.g. prostitution, pornography, homosexuality (while it was still illegal).
Oct '10
Re: Obama's Immigration Move Marks an Unprecedented Stretching of the Constitution
Refering back to the original Arizona arguments, this Administration actually proffered a different argument. However risibly, it claimed that issues of immigration lay in the President's sole purview of foreign policy.
ISTM, the real constitutional problem does not reside in the Oval Office, it rests with Congress, which has long ceded its regulatory powers to the Executive Branch -- we won't know what's in the healthcare bill, till the Secretary of HSS gets through filling in the legally binding blanks. The leap from Sibelius to Napolitano differs in brazenness, not kind.
So too, the exercise of Congressional oversight powers has long been a politicized afterthought, instead of the engine of restraint it ought to be. Eric Holder can get away with stonewalling Congress without even bothering to muster a legal argument for doing so, because clear lines of authority have never been established, nor any coherent body of precedents created. Darryl Issa's efforts hopefully mark a significant change in that respect, because what Chief Executive, whether Democrat or Republican, will voluntarily circumscribe his own powers once ensconced in office?
Dec '10
Re: Obama's Immigration Move Marks an Unprecedented Stretching of the Constitution
8 U.S.C. § 1440. "...the President by Executive order shall designate as a period in which Armed Forces of the United States are or were engaged in military operations involving armed conflict with a hostile foreign force, and who, if separated from such service, was separated under honorable conditions, may be naturalized..."
Bush acted in accordance with law when he issued EO 13269 [pdf].
Nov '11
Re: Obama's Immigration Move Marks an Unprecedented Stretching of the Constitution
Obama's declaration was almost as unconstitutional as the Emancipation Proclamation. Interesting parallels might occur to those familiar with Lincoln's letter to Browning, eschewing authority he soon exercised:
Yoo resorts to the bland accusation that Obama is "stretching" things. Maybe Obama is stretching executive power--as have his predecessors in some direction or another. The limits of prosecutorial discretion are fuzzy, and--as the term itself implies--largely within the power of the executive itself to determine, especially in matters affecting foreign countries.
The important principle (which Obama's policy satisfies) is that the discretion be anchored to coherent standards so that similarly situated persons are treated similarly, and no one is excused on the basis of individual personal favor or influence, but rather for equitable or practical considerations that would apply to anyone in the same circumstances.
Obama is no Lincoln (I knew Lincoln!), but Republicans deservedly suffer for having been steadfastly unreasonable toward any effort to rationalize immigration law.
May '10
Re: Obama's Immigration Move Marks an Unprecedented Stretching of the Constitution
It is definitely an election year ploy. Since passage of Obamacare his only serious concern has been re-election. And it is a good strategy. Congress has proven itself feckless and leaderless; there is no way they can figure out what to do about this in the next five months. Eric Holder has stonewalled them for longer than that. So he will get away with usurping Congressional power. It may throw Congress off balance for a while; though it probably won't get Mitt off message. It may give him a boost in the Hispanic community. There is simply no downside in this for Obama; he doesn't care about the long-term impact on the country or the Constitution.
Feb '11
Re: Obama's Immigration Move Marks an Unprecedented Stretching of the Constitution
King Prawn...perfect....thanks!
Dec '10
Re: Obama's Immigration Move Marks an Unprecedented Stretching of the Constitution
You're welcome. I did some more digging on the whole confused mess here. Obama almost has a point if our laws are so jumbled and contradictory that one can't make heads or tails of them. I'm generally against book burning, but I'd roast a few s'mellows over the CFR and USC. The reset button we need is for the Mt. Everest of federal laws, rules, and regulations the nation is buried under.
Apr '12
Re: Obama's Immigration Move Marks an Unprecedented Stretching of the Constitution
Did you consider Bush's EO on limiting federal funding of stem cell research to be constitutional?
Nov '11
Re: Obama's Immigration Move Marks an Unprecedented Stretching of the Constitution
Obama might retort, "If someone in Congress, or elsewhere, doesn't think my action passes Constitutional muster, let him challenge it before SCOTUS. Isn't that the role of the Judicial branch?"
But do we want the judicial branch refereeing every dispute among the other two?
Doesn't that give the judiciary too much power? (BTW: Obama would surely win in the courts.)
Congress has capacity to assert its own will IF it truly opposes the president's action. I suspect it does not, not least because Obama is right on substance, on morality and practicality, too, though for the wrong reasons. Yes, this is poltical, a rather ordinary tussle betwixt the political branches. We Republicans, with fingers lodged in our ears about anything that "smacks of amnesty," are getting our noses rubbed in it . . . deservedly. While we wail unattractively about process and precedents, Obama fortifies another brick in his coalition.
Marco Rubio should thank Obama for pre-empting him and thereby saving Rubio from being eaten by his own.
Edited on June 17, 2012 at 6:46am