Obama’s Immigration Rule is Unconstitutional according to Obama

The President announced this week that he has decided to stop enforcing certain parts of American immigration law.

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.

Comments

[larry kurtz]

Good post, Ken.

Now bring some power to bear on the President's choice to selectively prosecute some but not all state cannabis laws:

http://www.politico.com/news/stories/0612/77486.html

[Lynn]

Basically Obama is ruling like a dictator, which in his heart he believes he should be doing anyway, as he and only he knows what is right for the country and each individual citizen. He still has the Messiah complex, and firmly believes it. He is truly the most dangerous president we have had. What I cannot understand, however, is that Congress lets him get away with it. These actions should threaten not only Reps but also the Dems who still believe in separation of powers and the Constitution.

[larry kurtz]

Gawd.

Give you earth haters an inch and you take a light year: the good news is that the President will win in a landslide.

[SeriousLee]

Gosh, Larry. Seems like it was just 2 weeks ago you were certain that Scott Walker was going to lose.

I take this as a good omen for Romney.

[Douglas Wiken]

Interesting post. Adds a few more reasons for not sanctioning the illegal invasion of aliens to the US.

Unfortunately, we have a Morton's Fork or dilemma when it comes to current presidential choices. Obama who now seems intent on destroying the unity in the USA that has made our society and government work for a few hundred years and trashing the separation of powers in the Constitution that has guided us. And, Romney who wants to destroy opportunity in the US by favoring the very, very rich who have with Citizens United turned the US into a plutocracy with rulers and serfs.

[Bill Fleming]

I have a question. I suppose I could look it up, but it might be more fun to hear the people here field it. How is it that foreign nationals come to be allowed to enlist in the US military and fight for American citizens' liberty? And why does Romney consider this a legitimate pathway to citizenship? Is it via a green card? Is that one of the ways people can get one?

[Stan Gibilisco]

In my opinion, anyone who joins the Armed forces and either (1) spends five years in it or (2) goes on at least one active tour of duty ought to get a green card at the conclusion of that time. In addition, non-citizens who fight for my liberty ought to get courses in U.S. history and such, so that they can pass a test for full U.S. citizenship at the conclusion of the aforementioned time.

Congress can't even make their pee land on the floor right now, let alone do anything about a president who might go beyond his normal bounds. Maybe that Congressional impotence is the very reason Obama feels that he has to take certain matters into his own hands. No one else will eat their Powdermilk Biscuits and get up the gumption to do what has to be done!

[Bill Fleming]

It sounds to me like Romney is talking out of both sides of his mouth. I'm assuming that if an undocumented immigrant showed up at a recruiting station wanting to join the US Military, Romney's position would be that he wants him deported.

No? If not, why not? He's here "illegally" right?

The GOP has a way of overlooking these things when it comes to getting cheap labor (unless you're running for President for heaven's sakes) or you want them to fight and die in battle so you and your kids don't have to.

The hypocracy on this gets so thick and stinking sometimes it would be laughable if it weren't so gut-wrenchingly disgusting.

p.s. Union Democrats by and large are ambivalent about this because for the most part the jobs being taken (domestic field workers and other domestic workers) are specifically excluded from the Wagner Act. That means they can't be leaglly organized with binding contracts with employers until such time as either the Wagner Act is amended to include them or the individual states pass the equivalent of the Wagner act on the state level.

[Lynn]

This issue isn't simply regarding illegal aliens not being deported. It goes much deeper than that. Obama swore to uphold the laws of the US, and he has shown time and again that he ignores that oath. This is one case. Another was regarding Arizona. If he doesn't like a law, he just simply tells others to ignore the law. This is truly dangerous for the future of our country. Our founders feared just such a situation as this and thus included separation of powers regarding the executive,legislative, and judicial. Obama chooses to ignore this little item; of course, he prefers to think of the Constitution as a fluid document that he should be able to change as he wishes. That is the mark of a dictator, and that should concern all of us,both Dems and Reps. And Larry, to quote "Happy Days", sit on it!

[Donald Pay]

Obama was simply wrong in his first statement, and he probably knew it on reflection. Obama is a technocrat, so his first idea is to follow some technocratic, nerdy first reading of the law. Once he actually came to understand what it really meant to enforce the law, he started to see the injustice of it.

The government has immense powers to promote justice, which many people view as strictly punitive. But there is a restorative part to those powers. True justice requires some balance. Jim Crow was once the law in many states, and had constitutional approval, according to court decisions. Yet blacks challenged those laws. Anyone believe that a prosecutor seeking true justice might simply not bring suit for sitting at a lunch counter?

One way to obtain justice is to marshal resources on issues that matter, rather than wasting them on trivial pursuits that promote injustice. Going after small time pot smokers and children whose parents crossed the border with them in tow are examples of wasting resources that could be better put elsewhere.

No sane person believes toddlers and children brought across the border by parents were in any sense responsible for breaking immigration laws. Through the years we have educated those children, taught them English and the American way, because most of us, unlike people like Lynn, believe children shouldn't be discarded into a wastebasket called "illegal" and forgotten about.

[Lynn]

Donald, I don't believe those kids should be discarded;don't put words in my mouth. In fact, I agree that these kids did nothing wrong themselves and probably should be given a path to citizenship. However, the way that Obama is doing it is unconstitutional, and he knew that but did it anyway and violated his oath of office in doing so. This was purely a political ploy by Obama at this time. But, when a person commits a crime,like entering this country illegally, that person should consider the ramifications of such action on him/herself and the kids. Actions have consequences.

If Obama really wants to address the illegal immigration problem,then enforce the border. Once that is done, then address the illegal immigration situation, but until the border is secured, it is moot to deal with illegal immigrants.

And are these 800,000 or so young people allowed to also bring over all their extended family? Does this amnesty apply to their immediate family members too? It should do neither.

And no, I'm not anti-immigrant. My own father came LEGALLY to this country at age 20, taught himself English, became a naturalized American, worked his entire life, never expected a handout even though he never made a lot of money, and was a very proud American citizen. I simply believe people, incuding the president, should obey the laws.

[larry kurtz]

The Emancipation Proclamation was an executive order.

Now, Mr. President: tear out the Missouri River dams and rewild everything on the river from Oacoma to Yellowstone.

[Bill Fleming]

http://en.wikipedia.org/wiki/Immigration_and_Naturalization_Service_v._Chadha

[Douglas Wiken]

I am wondering if a drug peddler makes a chunk of money, do his kids have a right to keep the results of his ill-gotten gain?

If an importer brings in counterfeit goods, can a store that purchased them innocently continue selling them and profiting?

Start seizing the assets of those who hire illegal aliens and the invasion will stop.

[duggersd]

Cannot disagree, Douglas. I have thought for a long time that people who hire illegal aliens are just as much guilty of breaking a law as those who sneak in to the country. Today, it is not all that hard to have SS #'s checked and compared. Once the employer has done his part, then it is up to the feds to let the employer know if there is a problem.

[Donald Pay]

It's pretty hard for Republicans to really oppose the substance of what Obama did. The Republicans actually wrote, sponsored and voted for something very similar in the Dream Act, which is a bipartisan bill. Of course, they've backed away from that, and a lot of other things.

This is really not all that controversial, except to the racists, and I suppose the Republicans have to bow a bit to this substantial element of their base. In order to not look too extreme, though, and lose the Hispanic vote permanently, about all they can do is sputter about process.

Obama has been much too deferential to bipartisanship and hasn't used his Presidential powers enough. It's about time. Keep it coming.

[Jimi]

Donald,

"No sane person believes toddlers and children brought across the border by parents were in any sense responsible for breaking immigration laws."

You may want to do a little research on the results of 1986 Amnesty. It isn't about children breaking immigration laws, it's about economics and voting. Figure it out so that at least we could respect your comments instead of having to waist our time trying to help you figure it out all the time.

BTW....What exactly was your position on some of Bush's EO's like Stem Cell Research, Oil Drilling in Federal Lands, The Homeland Security Grabs, and Abortion? Did you find that when some on the right said, "Bush has been much too deferential to bipartisanship and hasn't used his Presidential powers enough. It's about time. Keep it coming," that the country was increasing its Freedom and Prosperity spectrum for the future?

[Bill Fleming]

This is a pretty clear win for Obama. Just sayin'.
http://miami.cbslocal.com/2012/06/19/poll-64-of-likely-voters-support-obamas-immigration-policy/

[Lynn]

Hasn't used his presidential powers enough,Donald?? He is ruling like a dictator, which he wishes he were. Our Constitution set up balance of powers for a reason, and it was like they could see Obama coming 200+ years ago. It's time for Congress to start using THEIR legislative powers.

[A.I.]

Once again we learn it's far more enlightening to get news from the Daily Show than either Faux News or the Moonie Times: http://www.thedailyshow.com/full-episodes/tue-june-19-2012-denis-leary

Starting at about the 8 minute mark, Stewart reveals the full context of the President's directive regarding immigration law enforcement. We learn the the rest of the Obama interview referenced by Fox and the Times included the President saying he could do exactly what he did last week and explaining why he could. And we learn his actions are far from without precedent and far from dictatorial.

[Jimi]

A.I.

So let me get this straight...we are to refer to the Daily Show to get Obama's take on why he thinks using EO is justified in his own mind? Awesome!

Should I refer to David Letterman for the most current economic predictions too?

[Ken Blanchard]

A.I.: see what is said about "prioritizing."

[Anthony Renli]

Actually Jimi - I think he was referring to the fact that Fox News and the Washington Times deceptively edited an interview with Obama that made it "appear" that he said he couldn't legally stop enforcement of deportations with an executive order...and by deceptively edit, I mean cut him off mid-sentence.

And then pointed out the President Bush did the same with Liberians (and so did Clinton,H.W. Bush, and Reagan on different groups at various times).

Now - right or wrong - he is simply doing what every president in modern history has done with deportation rules - using executive orders to control enforcement of the laws.

[Donald Pay]

Thanks, Mr. Renli. I didn't read closely enough to realize that KB picked up the FOXified/MOOnified version of Obama's quote, and splashed it here. I expect people like Lynn and Jimi to believe the half truths photocopied by the echochamber, but I expect more of myself. So, Obama gave the right answer from the start, which is more in keeping with his character. And the righties here keep believing the edited version because, well, they're idiots and racists, and want to believe there's some sort of controversy here.

[A.I.]

And some may be political hack wannabes Donald, but I won't speculate on who (or is that whom?). Keeping this site factual is a burden and it's fun trying with you, Bill and others to keep it so.

Lets call it prioritizing to the max KB. If it's a problem when Obama does it, why is it not when Republican presidents do?