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. Yet if Obama wants to set a precedent for presidential nullification through selective non-enforcement, it’s not clear how it could be overturned. It’s also not clear whether it would be a bad thing. Krauthammer writes:

Imagine: A Republican president submits to Congress a bill abolishing the capital gains tax. Congress rejects it. The president then orders the IRS to stop collecting capital gains taxes and declares that anyone refusing to pay them will suffer no fine, no penalty, no sanction whatsoever. (Analogy first suggested by law professor John Yoo.)

It would be a scandal, a constitutional crisis, a cause for impeachment. Why? Because unlike, for example, war powers, this is not an area of perpetual executive-legislative territorial contention. Nor is cap gains, like the judicial status of unlawful enemy combatants, an area where the law is silent or ambiguous. Capital gains is straightforward tax law. Just as Obama’s bombshell amnesty-by-fiat is a subversion of straightforward immigration law.

Is Krauthammer correct that presidential non-enforcement of capital gains taxes would be a cause for impeachment? I’m not sure. I also wonder whether the answer to that question has changed since June 15, 2012. Maybe it would have been a cause for impeachment, but now, because Obama has set the precedent, and because he’ll surely not be impeached– even Krauthammer doesn’t seem to call for that– maybe a president would have a better chance of nullifying capital gains taxes and staying in office. That seems very unlikely, anyway. And I might not mind if presidents had the power to cut (but not raise!) taxes by fiat. It’s not clear how this precedent could have any non-libertarian-friendly effects.

Krauthammer recognizes the crucial incentive effects that any forbearance towards illegal immigrants will have:

As for policy, I sympathize with the obvious humanitarian motives of the Dream Act. But two important considerations are overlooked in concentrating exclusively on the Dream Act poster child, the straight-A valedictorian who rescues kittens from trees.

First, offering potential illegal immigrants the prospect that, if they can hide just long enough, their children will one day freely enjoy the bounties of American life creates a huge incentive for yet more illegal immigration.

Second, the case for compassion and fairness is hardly as clear-cut as advertised. What about those who languish for years in godforsaken countries awaiting legal admission to America? Their scrupulousness about the law could easily cost their children the American future that illegal immigrants will have secured for theirs.

I am all in favor of incentivizing more illegal immigrants to come. We need them to buy our depreciated houses and increase the tax base to pay for aging Baby Boomers. It’s good for them to get higher incomes and more freedom. And so forth. The kind of rule of law that consists in excluding them is a bad kind of rule of law, and the more it is undermined, the better. And our system’s cruelty to people who “languish for years in godforsaken countries awaiting legal admission to America” by treating resident foreign-born (but de facto American) persons cruelly as well.

But whatever our honest and honorable disagreements about the policy, what holds us together is a shared allegiance to our constitutional order. That’s the fundamental issue here. As Obama himself argued in rejecting the executive action he has now undertaken, “America is a nation of laws, which means I, as the president, am obligated to enforce the law. I don’t have a choice about that.”

Except, apparently, when violating that solemn obligation serves his reelection needs.

But what really undermines rule of law is immigration restrictions themselves. It’s impossible to make them incentive-compatible, without unacceptable ruthlessness. It’s impossible to get the moral community of the American people on side because such laws have no basis in morality. And our most fundamental commitment is to liberty and justice for all, of which deporting Dreamers is a mockery. That’s why the American people are ignoring Krauthammer’s rule-of-law criticisms.

Nathan Smith

Nathan Smith is an assistant professor of economics at Fresno Pacific University. He did his Ph.D. in economics from George Mason University and has also worked for the World Bank. Smith proposed Don’t Restrict Immigration, Tax It, one of the more comprehensive keyhole solution proposals to address concerns surrounding open borders.

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