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On This Week, George Stephanopoulos asked the President about his executive action on immigraiton:

STEPHANOPOULOS: So you had a friendly crowd out there but a pretty fierce Republican reaction in Washington. The Speaker this morning says your acting like an emperor and you’re damaging the presidency. Your response?

OBAMA: Well, my response is pass a bill. You heard me out there today and you heard me yesterday. The truth is that the Senate did a good job in crafting a bipartisan bill that would have greatly improved our immigration system, and my preference is for a legislative solution to this problem.

STEPHANOPOULOS: But that didn’t happen.

OBAMA: It didn’t happen because the Speaker would not call the bill for a vote in the House. And he still has several weeks to call that bill in the House or he can work with me and Democrats to craft a new bill.

STEPHANOPOULOS: He says that’s not going to happen now.

OBAMA: And the point is that ultimately, Congress has a responsibility to deal with these issues. And there are some things that I can’t do on my own. What I do have is the legal authority to try to make the system better, given the resource constraints that we have, we have to prioritize…

The Senate has no “responsibility” to do anything. They can vote for, or against bills, or not vote at all. They have constitutional duties. (Read Article I. The word “shall” appears only with respect to receiving the State of the Union). But do you know who has a “shall” in their duties? The President, who “Shall take care the laws [are] faithfully executed.”

Steph also pinned POTUS down on his “evolution” on executive power:

STEPHANOPOULOS: But you have done more than you used to think you can do. You know several times over the last couple of years you were asked can you do more and you said nope, I am out of administrative flexibility, what changed?

OBAMA: Well, that’s not true, if you look George, I often times was asked: ‘Can you just halt deportations?’ And I said, ‘No I can’t do that.’

STEPHANOPOULOS: No, but I have it right here–

OBAMA: Go ahead–

STEPHANOPOULOS: On a Google Hangout, you were asked specifically, “‘What can you do to prevent families from being broken apart’ and you said, ‘I’m not an emperor, I am out of administrative flexibility.’”

OBAMA: I–I–George, what is absolutely true is that we couldn’t solve the entire problem and still can’t solve the entire problem. But what we can do is to prioritize felons, criminals, recent arrivals, folks who are coming right at the border, and acknowledge that if somebody’s been here for over five years, they may have an American child or a legal permanent resident child, it doesn’t make sense for us to prioritize them when we know that we need more resources-

After this evasion, Steph distinguished when Reagan and H.W. Bush did, because it followed a bipartisan statute.

STEPHANOPOULOS: But do you have the right to make that decision on your own?

OBAMA: Absolutely. If you look, every president – Democrat and Republican – over decades has done the same thing as I mentioned in my remarks today. George H. W. Bush, about 40% of the undocumented persons, at the time, were provided a similar kind of relief as a consequence of executive action–

STEPHANOPOULOS: But you know the response of both Reagan – but in that case, there were bipartisan bills passed, they were acting after the bills were passed, not because Congress did not act.

OBAMA: Well George, I’m not sure that argues in favor. If Congress acted specifically and left something out and then a President goes ahead right afterwards and does more than Congress agreed to, it’s actually not different. It’s similar. The fact is is that we exercise prosecutorial discretion all the time. And, you know, the primary response that I have to Speaker Boehner and others is go ahead and pass legislation. They don’t need me to act. In fact, I encourage them to act but in the meantime what we’ve got to make sure of is, number one that our borders are secure and what I’m doing is going to allow us to put more resources there, number two it’s going to allow us to focus on the people that we really want out. Number three, what it allows us to do is to say to folks who have been here for a while, register, we’re gonna submit — you’re going to submit to a criminal background check and you’re going to pay taxes. Why we would prefer a system in which they’re in the shadows, potentially taking advantage of living here but not contributing makes no sense.

His answer is non-responsive.

Steph then turns to the example of a future President who wants to lower taxes (I’ve raised this exact scenario before).

STEPHANOPOULOS: How do you respond to the argument, a future president comes in, wants lower taxes. Doesn’t happen. Congress won’t do it – he says I’m not going to prosecute those who don’t pay capital gains tax.

OBAMA: Well, the truth of the matter is, George, that the reason that we have to do prosecutorial discretion in immigration is that we know we are not even close to being able to deal with the folks who have been here a long time. The vast majority of folks understand that they need to pay taxes, and when we conduct an audit, for example, we are selecting those folks who are most likely to be cheating. We’re not going after millions and millions of people who everybody knows are here and were taking advantage of low wages as they’re mowing lawns or cleaning out bedpans, and looking the other way – but then you got politicians suddenly going out there saying, suggesting somehow that we should be deporting all of them. Everybody knows, including Republicans, that we’re not going to deport 11 million people.

STEPHANOPOULOS: So you don’t think it’d be legitimate for a future president to make that argument?

OBAMA: With respect to taxes? Absolutely not. But what is true – what is true today is we don’t audit every single person, but we still expect that people are going to go ahead and follow the law. And we have limited resources, we have to make sure that we prioritize those folks who are most dangerous and we should acknowledge what everybody has already acknowledged through their actions – and Congress acknowledges through their budget – which is we’re not in the business of deporting millions of people or breaking up families.

There is nothing in the President’s response which explains why future Executive can decline to audit tax offenders.

The President also inadvertently called it “Obamacare.”

STEPHANOPOULOS: Ted Cruz says that now Republicans should block every nomination going forward. Your friend Senator Tom Coburn is wondering about possible violence. What do you think about those reactions?

OBAMA: Well, you know, there’s often a lot of rhetoric coming out of Congress, uh, and in Washington. But it doesn’t match up to what I think the American people expect. What the American people expect is that if we disagree on one thing, then we disagree on that thing. And then we work on everything else. One of the habits that we’ve seen in Congress over the last four years since the House Republicans took over, is that everything becomes hostage to one disagreement. So a couple of years ago it was Obamacare, the Affordable Care Act. And they decided, “We’re gonna shut down the government because we disagree with this one law.”

In one of the more delusional responses, he said his approach to executive power was “very restrained.”

STEPHANOPOULOS: How much has your view of executive power changed over the years? I remember when you were a senator you used to warn about presidents over-reaching, yet a lot of your critics now say you’re doing it more than anyone else. Has your view of executive power changed?

OBAMA: It actually hasn’t, George. If you look – the history is that I have issued fewer executive actions than most of my predecessors, by a longshot. The difference is the response of Congress. And specifically the response of some of the Republicans. But if you ask historians, take a look at the track records of the modern presidency, I’ve actually been very restrained. And I’ve been very restrained with respect to immigration. I bent over backwards and will continue to do everything I can to get Congress to work. Because that’s my preference.

 

Here’s a fun fact. The Universal Studios backlot used the same set for the Courthouse in To Kill a Mockingbird and Back to the Future!

Check out this backlot tour of UNiversal Studios from 1989 to hear it from the guide (2:58).

From SNL’s Cold Open, President Obama throws the bill down the steps, and replaces him with an “executive order.”

“Don’t you have to go through Congress?” “That’s adorable!”

In Youngstown, the Court found that President Truman violated the separation of powers by seizing the steel mills, without Congressional authorization. In an alternate reality, could Congress have brought articles of impeachment? Sure, you can bring articles of impeachment. The most interesting question is whether the Senate would have been correct to remove him. Is a Supreme Court decision finding the President violated the Separation of Powers conclusive evidence that the President was guilty of “high Crimes and Misdemeanors.” Of course the Senate would be able to decide for itself whether the President acted lawfully, but a Supreme Court decision would be probative.

In a post documenting how the National Organization of Marriage has had a significant drop in donations, Mark Joseph Stern posits one possible reason–the fear of being unmasked chills donations:

My second, related theory is NOM’s donors are increasingly terrified of being unmasked. For years, the group flew under the radar, and donors could give anonymously. But since the Prop 8 debacle, the indefatigable Fred Karger and his merry band of campaign finance lawyers have been fighting in court, successfully, to force NOM to disclose its donor lists. As the Brendan Eich controversy illustrates, having your name linked with an anti-gay cause can irreparably tarnish your public image. For anti-gay Americans without the backbone to weather harsh criticism, a NOM donation simply isn’t worth the risk.

Stern’s point brings to mind Justice Thomas’s dissent in Doe v. Reed. In Doe v. Reed, the Supreme Court found that a Washington law that permitted the public disclosure of petition signatures for ballot initiatives survived First Amendment scrutiny. In dissent, Justice Thomas alone wrote that disclosing the signatures “chills participation in the referendum process.”

Just as “[c]onfidence in the integrity of our electoral processes is essential to the functioning of our participa- tory democracy,” Purcell v. Gonzalez, 549 U. S. 1, 4 (2006) (per curiam), so too is citizen participation in those processes, which necessarily entails political speech and association under the First Amendment. In my view, compelled disclosure of signed referendum and initiative petitions under the Washington Public Records Act (PRA), Wash. Rev. Code §42.56.001, et seq. (2008), severely burdens those rights and chills citizen participation in the referendum process. Given those burdens, I would hold that Washington’s decision to subject all referendum petitions to public disclosure is unconstitutional because there will always be a less restrictive means by which Washington can vindicate its stated interest in preserving the integrity of its referendum process. I respectfully dissent.

Doe v. Reed emerged as supporters of the same-sex marriage ban reported allegations of harassment and intimidation in Washington. Similar reports were made for supporters of Prop 8 in California.

Stern’s point captures in a nutshell a theme I am developing in my work on collective liberty, where traditional liberal values clash. On the one hand, in cases stretching from NAACP v. Alabama, progressives once valued the ability of private groups to maintain the anonymity of their members. On the other hand, progressives see little value in protecting association if it is used to harm various social justice causes, such as same-sex marriage. These two values clash, and not in a reconcilable way. This is the essence of Breyer’s collective liberty. The First Amendment only works when it serves some greater goal.

I argue that the latter group is on the rise, and the latter group, is on the fall.Where the First Amendment and social justice clash, social justice prevails. Recent debates over compelled speech in the Elane Photography Case illustrate, disclosure of signatures in Houston, subpoenas of pastors, and campaign finance reform in the ACLU, illustrate this dynamic well. This is what Floyd Abrams referred to as the “disturbing recurring reality” of collective liberty.

See my remarks at the Loyola Constitutional Law Colloquium for more details.