President Obama announced a new policy Friday that eases deportation rules for as many as 800,000 undocumented immigrants in the United States, allowing immigrants who were brought to the U.S. before they turned 16 but are younger than 30 and have been in the country for at least five consecutive years to not face deportation, and apply for temporary work authorizations.
This might be the right policy. It raises, however a very important question: does the President have the prerogative to simply stop faithfully executing duly enacted federal law because he has decided it's bad policy and not in his political interests at the moment? The White House thinks so. From George Stephanopoulos:
Obama senior adviser David Plouffe said the White House is "absolutely confident this is within our authority" on President Obama's immigration policy change announced Friday, but emphasized it "is not a permanent solution." "Our attorneys — the homeland security attorneys — are absolutely confident this is within our authority, to use some discretion," Plouffe told me this morning on "This Week."
On the other hand one constitutional law scholar, who taught briefly at the University of Chicago Law School, disagrees. The Washington Times has this quote from March, 2011:
With respect to the notion that I could suspend deportations through executive order, that's just not the case, because there are laws on the books that Congress has passed and I know that everybody here at Bell is studying hard so you know we have three branches of government. Congresses passes the law. The executive branch's job is to enforce and implement those laws and then the judiciary has to interpret the law. There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system, that for me through simply an executive order ignore those mandates would not conform with my appropriate role as president.
So President Obama has issued an executive order that he himself considers blatantly unconstitutional. He thinks it is his job to enforce and implement laws passed by Congress, and that to ignore the "very clear" mandates in our immigration laws would not "conform with [his] appropriate role as president." That is what he said unambiguously fifteen months ago.
There are two reasonable possibilities here. One is that the President didn't really believe what he said in 2011. He just said whatever he needed to say to justify his inaction at that time. The other is that he did believe it but it doesn't matter to him. He is not one to let his constitutional scruples stand in the way of his reelection. Take your pick. Either way it means that one can put no trust in what the President says, no matter how solemnly he says it.
Offhand I can think of five reasons that a President might offer for selectively enforcing federal immigration laws. The first is that the President considers the law to be unconstitutional. In that case, he is duty-bound to refuse to enforce it. So far as I can tell, the Administration is not arguing that the immigration laws are unconstitutional.
A second reason would be that the law in question is in conflict with another, equally binding federal law. That doesn't seem to be the case here.
Third, the President could that this is an exercise in prosecutorial discretion. The Administration does seem to be employing this language, but it doesn't work here because such discretion is exercised in individual cases, not in an across the board rule.
Fourth, the President could argue that he is merely "prioritizing". When crimes are many and police resources are limited, one can adopt a policy of focusing first on the worst crimes. Again, that doesn't help much here. The President is not putting deportation of a certain category of offenders lower on a list. He is taking that category off the list for deportation.
Fifth, the President can argue or act as if he believed that he has the prerogative to nullify portions of federal laws by refusing to enforce them. That is clearly what the President is doing here. He is all but enacting the Dream Act without Congressional action, which is to say he is making new law through executive order.
Politically, this looks to be a daring move. On the one hand, it has clearly flummoxed the Romney campaign at a time when the Obama campaign desperately needed to do some flummoxing. Obama's folks were very worried about the possibility that Marco Rubio would move his own version of the Dream Act through and then end up as Mitt's running mate.
On the other hand, this is not the sort of move that is going to be popular with independents or with union Democrats. It also raises some problems on the jobs front. When job creation is so slow, adding 800,000 new, legal job seekers to the roles might not improve the situation.
The question we might want to ask now is whether we agree with President Obama (March 2011) that President Obama's executive order on immigration (June 2012) is unconstitutional or not? A lot of conservatives are inclined to cheer Obama's action. They hope that a soon to be Republican President can bring the fiscal house of these United States under control simply by refusing to spend money as required by law. Maybe they are right. If you want the next Republican president to have the power to nullify federal law by executive fiat, you will have the one Obama but not the other to testify on your behalf.