Taking Care, With Discretion, That The Laws Are Faithfully Executed

June 17th, 2012

The Obama Presidency has interested me on many, many fronts, though perhaps none more so than the fact that he is more of a Unitary Executive than George Bush ever was. With respect to the War on Terror, in addition to continuing Bush’s policies with respect to Gitmo, Obama has one-upped GWB with undeclared wars (sorry, kinetic military conflicts) in Libya, and drone strikes on American citizens in countries we are not currently engaged in hostilities with. Say what you will about Bush, but at least he could hang his hat on the AUMF to reasonably justify his wars of aggression.

The Administration continues to crack down and prosecute medicinal marijuana dispensaries, even though the AG originally said this was a low priority.

However, Obama has also used his view of the unitary executive to advance Progressive goals on the Domestic front. His decision to unilaterally not defend the Defense of Marriage Act may reach a result I agree with (DOMA is a stupid and odious law), but his failure to take care that the law is faithfully executed represents a shock to the rule of law and our separation of powers.

I think the President’s decision to do an end-run around Congress’s decision not to enact the DREAM Act (I think the DREAM Act is an excellent law that would do some justice in of our horrendous immigration system) is even more indefensible. Think of this in terms of Youngstown. Congress DIDN’T do this. It is clear this goes against Congress’s intent. Yet the President, effectively by executive order, is doing what Congress did not allow.

For immigrants who come forward and qualify, Homeland Security authorities will use prosecutorial discretion to grant deferred action, a reprieve that will be valid for two years and will have to be renewed. Under current law, that status allows immigrants to apply for work permits.

In a memorandum issued Friday referring to the students, Homeland Security SecretaryJanet Napolitano instructed all enforcement agents to “immediately exercise their discretion, on an individual basis, in order to prevent low-priority individuals from being placed into removal proceedings.”

Discretion may be the better part of valor, though it does not ensure the laws are faithfully executed.

Liberals who may like (at least the domestic) Unitary Executive may take heed that the next President (Romney perhaps) could use the same “discretion” for very different results.

I don’t like it, not one bit.

Update: And John Yoo agrees with me that Obama’s assertion of executive power goes beyond GWB!

President Obama’s claim that he can refuse to deport 800,000 aliens here in the country illegally illustrates the 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). . .  .

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. That is an exercise of executive power that even the most stalwart defenders of an energetic executive — not to mention the Framers — cannot support.

And it seems that even President Obama may also exercise this discretion with respect to deportations–or he is pandering for the vote.