June 22, 2012 3 Comments
Post by Nathan Smith (regular blogger for the site, joined April 2012). See:
Charles Krauthammer and Andy McCarthy are going after Obama most strongly on “rule of law” grounds. Krauthammer:
“With respect to the notion that I can just suspend deportations [of immigrants brought here illegally as children] through executive order, that’s just not the case, because there are laws on the books that Congress has passed.”
Those laws remain on the books. They have not changed. Yet Obama last week suspended these very deportations — granting infinitely renewable “deferred action” with attendant work permits — thereby unilaterally rewriting the law. And doing precisely what he himself admits he is barred from doing.
Obama had tried to change the law. In late 2010, he asked Congress to pass the Dream Act, which offered a path to citizenship for hundreds of thousands of young illegal immigrants. Congress refused.
When subsequently pressed by Hispanic groups to simply implement the law by executive action, Obama explained that it would be illegal. “Now, I know some people want me to bypass Congress and change the laws on my own. . . . But that’s not how our system works. That’s not how our democracy functions. That’s not how our Constitution is written.”
That was then. Now he’s gone and done it anyway. It’s obvious why. The election approaches and his margin is slipping. He needs a big Hispanic vote and this is the perfect pander. After all, who will call him on it? A supine press? Congressional Democrats? Nothing like an upcoming election to temper their Bush 43-era zeal for defending Congress’s exclusive Article I power to legislate.
Yes, good point. It will be interesting to see how Obama explains this– and for that matter, who will challenge him on it. If it’s no one but Krauthammer and Andy McCarthy– not even the Romney campaign– that would be interesting too. What kind of precedent will this set? I doubt that the process issue will hurt Obama politically– possibly the policy substance of it might, though probably (and I hope) not. Aside from the point that Obama seems to have previously thought what he’s doing now is unconstitutional, Krauthammer dismisses the claim of “prosecutorial discretion”:
With a single Homeland Security Department memo, the immigration laws no longer apply to 800,000 people. By what justification? Prosecutorial discretion, says Janet Napolitano.
This is utter nonsense. Prosecutorial discretion is the application on a case-by-case basis of considerations of extreme and extenuating circumstances. No one is going to deport, say, a 29-year-old illegal immigrant whose parents had just died in some ghastly accident and who is the sole support for a disabled younger sister and ailing granny. That’s what prosecutorial discretion is for. The Napolitano memo is nothing of the sort. It’s the unilateral creation of a new category of persons — a class of 800,000 — who, regardless of individual circumstance, are hereby exempt from current law so long as they meet certain biographic criteria.
This is not discretion. This is a fundamental rewriting of the law.
I’m no lawyer and hesitate to take a stand… but I have some sympathy for Krauthammer on the legal question, though of course not on policy. Obama’s move does seem to be illegal in spirit. Read more of this post