The Obama Administration again waited for a Friday afternoon to announce a major new policy change — repeating its practice of timing important announcements to reduce media and public attention. The latest change is obviously controversial. The Administration will no longer deport illegal aliens under 30 who came to this country as children — effectively negating part of the federal law. It raises some troubling questions, again, about President Obama assertion of executive power. While liberals again celebrate the unilateral action, they ignore that danger that the next president may also simply chose to ignore whole areas of the federal law and criminal code in areas ranging from the environment to employment discrimination. It is one more brick in the wall of the Imperial Presidency constructed under Barack Obama — a wall that may prove difficult to dismantle for citizens in the future.
Presidents are given extreme deference in decisions on the enforcement of federal laws. It would be difficult for anyone to challenge this policy for that reason. However, that does not mean that this is a good practice — regardless of the merits of specific policy. It is also hard to ignore the obvious political play for Hispanic votes in key swing states. Obama waited for years to take this action and did so with polls showing that Hispanics will likely select the next president. Even some of the more liberal columnists and reporters are acknowledging that this change appears driven by politics.
Obama officials do not deny that they are circumventing Congress. In a recent interview, senior Obama adviser David Plouff told CNN “if congress would act, we would be happy to sign the DREAM Act tomorrow.” Since it has not done so, the White House is going to accomplish the same objection unilaterally.
This is different from past presidents who have not made deportation a priority in their policies. Despite the criticism of Obama, he is certainly no less aggressive on deportation than his predecessors. Indeed, he may be more aggressive in terms of numbers. Presidents like George W. Bush clearly did not push for deportation based solely on illegal status. The Administration, however, was forced to admit this long-suspected policy in court in fighting the Arizona law — stating that it did conflict with federal policy because the Administration did not want mass deportations.
This is different. Here the Administration is implementing a categorical policy not to enforce federal law, which dictates deportation for illegal immigrations regardless of their age. Congress has refused to pass such laws and this is an obvious effort to circumvent Congress — something of a signature for this Administration. Liberals were outraged by Bush’s use of signing statements as a circumvention of Congress. Yet, when Obama broke his promise and started using signing statements, liberals were again silent. Now, he has gone further and (rather than advancing a restrictive interpretation) he has announced that he will simply not enforce the law.
The change could also create a new conflict with states passing tough immigration laws. We are awaiting the ruling of the Supreme Court in the Arizona case where the Administration may lose some ground. The announcement on Friday could be an effort to preempt the decision. If the Administration had already decided to stop deportations, it would look bad to come after the decision and appear to be circumventing both the judicial and legislative branches.
This is part of a pattern for the Administration. For example, the Administration has announced that it will ignore two federal statutes that bar betting across state lines. That effectively legalized Internet gambling. While his Administration claims that it has no choice but to enforce other laws like marijuana enforcement and for years, both DOMA and Don’t Ask, Don’t Tell laws, it has not hesitated to declare other laws as unenforceable as a matter of policy. Ultimately, it took the same approach to DOMA — after years of defending it. DOMA is striking in that the Administration still refuses to accept that sexual orientation should be treated like race or gender as a category of discrimination. If it did, the refusal to defend DOMA would have been more clearly based on a view that it is unconstitutional. Instead, the Administration made general claims of states rights (that do not apply to areas like medical marijuana it seems) and even more vague references to privacy and equal protection.
What is left is a conflicted approach to enforcement based on the president’s changing views — in the latest case a change that seems motivated in large part by political advantage.
Liberals and civil libertarians were united on such questions in denouncing the circumvention of Congress by Bush. However, once again, there appears to be a blindness to the dangers of this practice when it comes to Obama. What will happen if a President Romney simply declares that he is not going to enforce environmental law or conflict laws or other parts of the federal code? Is the difference going to be simply that he is not Obama? Liberals are losing not just their credibility but principles in these controversies. Our system is based on a careful balancing of power that forces disparate factional groups to reach agreements in the legislative process. That is what brings the stability to our system.
This latest controversy is not about young illegal immigrants. There are strong policy arguments in favor of this change. However, those arguments need to be made in Congress. This should also not be an “after-the-fact” debate following a change late on a Friday where the president simply grants the equivalent of amnesty for hundreds of thousands of people. Polls show a sharply divided population with a majority favoring tougher immigration laws. We have a political system designed to address such divisive issues. It does not always work the way presidents demand. Indeed, the Democrats previously used filibusters and other techniques to block the Bush Administration and how the Republicans are doing the same thing. However, that is the point. Presidents should not be able to simply make federal laws discretionary to their whim or will. This may be a worthy end but it is the wrong means in a system based on shared powers of government.
Source: Politico
One of the most disturbing things going on in this nation is the left’s desire for a dictator. Congress isn’t functional so we need a dictator? WOW!
Leftists have a long, ignoble history of ushering in brutal dictators. Leftists complain loudly about this tendency on the right, as well they should. The right has brought in an amazing number of truly horrific “dear leaders”. But currently, it is the left who wants a savior, a father figure and a dictator to make things “right”.
This is a very dangerous time in our history. Father figures, saviors and dictators have no place in a functioning democracy.
There is another fact to consider. Women’s rights, inequality for the LBGT community and justice for immigrants as well as a tanking economy were all problems during the two years of a Democratic president, house and senate. The people were behind addressing these issues all the way. Funny how nothing ever got done, even when everything favored resolving these issues. Kind of makes you think the people in power didn’t want to solve them.
People are just breaking down and crying for joy when they find out what the president did,” said Lorella Praeli, a leader of the United We Dream Network, the largest coalition of illegal immigrant students. Sometimes you just have to do the right thing. I, personally, have had a problem with the deportations.
Jill,
the rule of law has not been challenged by this. It is the law that the executive branch can decide who to prosecute. The President is in a fight against Republican congressional corporatists whose only goal is to defeat the President. The economy be damned.
JIll,
If you are refering to the Supreme Court you are partially correct. It is functioning perfectly for the interests that own the majority.
CLH,
The system was designed by the Senate when they decide on their rules, but it is far from being democratic. Minority control is not what democracy is all about.
Rubio now is saying he will withdraw his legislation and the dreamact that was backed bipartisanly (is that a word), is lying dormant because of the obstructionist republicans.
As far as I am concerned, although I do not like a number of things the president has done, and I am a supporter, I think this obstructionist congress left him no choice.
As for politically motivated, everything any politician doers is politically motivated, but there is a ways to go until the election, Romney still being called the “presumptive nominee”. So anything and everything Pres Obama does can be called politically motivated. Should he stop doing anything to help anyone, and everyone, that the congress has refused to help, by saying “No, wait, can’t do it. People will say Im doing it only for political gain.” Get real here. This is politics and accusing the other guy of only acting as a means to vote getting has always been the name of the game.
rafflaw-“the fact that the Republicans in the Senate have un-Democratically blocked the DREAM Act with filibusters and won’t allow it to be even discussed in the House.”
rafflaw, I agree with you on most of your points. Congress is busted, because the people who elected them are busted. The fault lies with the electorate, as much as the actual bodies in congress. However, you say “un-Deomcratically blocked”, but that is part of the system created by congress as part of our republican form of government. It’s very democratic, it’s just mind blowingly stupid. “…and you all know who broke it.” Yep. Libs, Conservatives, and all those in between.
frandavey- An Executive Order, by definition, is a legally binding order given by the president to federal agencies. The courts have long granted the president a great deal of leeway in the management of the executive functions, including things that may go against the will of congress. However, I don’t see how this can be constitutional. I don’t know much of the case law involved, but Section 3 of Article II of the Constitution directs the President to “take Care that the Laws be faithfully executed.” Laws? What laws. We don’t need no steenkin’ laws.
Mike S.- “Can’t win for losing. The Republicans in Congress are literally committing treason against this country by refusing to do anything to help the economy, unless safety net programs are shredded”
Uhm, how is that giving aid or comfort to the enemies of the United States? Or were you meaning that as hyperbole? I agree they’re acting like horses’ asses, but not quite treason. After all, they merely reflect the choices of voters in this country. Baa baa dumb sheeple, you get the government you deserve
Prof. Turley and Jill- Both of you mirror my thoughts on this exactly. It’s not that the policies he is supporting are bad, it’s the way he’s going about it. Again, I have very little problem with any government that acts in good faith. When someone makes such a bald vote grab, even the sheeple will tend to notice. There is such a thing as subtlety, and even the most blind can and will see this as a weasel move. Power given to the government is usually impossible to get back. This is a trend that is continuing and will continue until civil liberties, the checks and balances system, and the US itself are nothing but a sad shadow of former glory.
Congress doesn’t work, or haven’t you noticed, Professor?
I wonder if ICE will come after the kids’ parents who will be outed. Could be a clever way to find more undocumented immigrants, after the election, of course. Or is that too cynical?
I suspect the OLC must have issued a review of this action prior to the action being taken. I would like to see what they said. In the meantime, Professor Turley makes some troubling points.
Sen McConnell has invoked the “Thurmond Rule” in order to block all judicial nominees.
I think it’s a horrible decision. It’s one thing to use prosecutorial discretion over which crimes to prioritize. It’s something completely different to announce, in contravention of the law that you will not only refuse to deport a class of illegal immigrants but will grant them work permits. And to do this at a time of 8% unemployment?
From a purely political move it’s brilliant because it boxed Romney in.
But I don’t think we want to start having the precedent that any time the President can’t get something done thru Congress he can just do it administratively.
If a President Romney were to announce that the IRS/Treasury would no longer investigate or prosecute people who did not pay capital gains taxes or that the FBI was getting out of the business of going after people who bombed abortion clinics or harassed workers there, I think many people would be upset. There is a process to follow and use.
Mike,
You need to face reality some time. When are you going to do it? Obama isn’t even in charge, the military is. You accept illegal and cruel behavior because you believe in Obama. You need to stop believing and start looking at reality. You were a social worker and you know what happens when people simply will not face the truth.
Alan and rafflaw,
We don’t have a functioning executive either. You won’t solve this nation’s problems by granting powers to the executive. You will only solve them by standing firm for the rule of law. (We don’t have a functioning upper level judiciary either. We are in big trouble.)
“His supporters completely ignore or even cheer on the dismantling of the rule of law.”
Jill,
I’m sure you’re “shocked” by this new revelation about the Satan in the White House.
Can’t win for losing. The Republicans in Congress are literally committing treason against this country by refusing to do anything to help the economy, unless safety net programs are shredded. This does not mean in my opinion that Democrats and/or the President have behaved in a pristine manner, that is far from the case. However, when democratically elected legislators insist on behaving anti-democratically who then is to run the country and how is it to be run? As Franklin alluded a republic is hard to run. How do you run it when the opposition refuses to accept the judgment of the ballot box, as they did with Clinton and are doing with Obama?
Once again, I agree with Raff. What congress? Do we have a congress? If there is politcal motivation it is to expose the lack of action/obstruction by the GOP.
The pattern of violations of law here is obvious, and it is much worse than this article suggests. President Obama obviously has no respect for the law, and violates it at every opportunity. His “rationale” in the case of immigration law is simple: pandering to the Hispanic voting community to buy votes. But the attack on the law is equally evident with the U.S. Supreme Court, who attacked long-established protections under the First Amendment–eviserating First Amendment whistleblower protections for government employees in its majority opinion in the case of Garcetti v. Ceballos. The USA is under attack from all sides.
This is the rule of fiat. It is in fact quite dangerous. Clearly, Obama’s handlers tell him to do this and don’t do that so that he will get elected. What is to prevent president Obama from changing his mind again once he gets elected? Nothing!
His supporters completely ignore or even cheer on the dismantling of the rule of law. Cheer for torture, cheer for murder, cheer for women’s rights. Cheer for gay rights. Cheer for immigrants. Cheer for cluster bombs! But all of these things are connected. They depend on the willing acquiescence of citizens to lawlessness.
It never strikes supporters that there is something fishy about Obama just now discovering that women are in trouble in this society. That gay and lesbian people do not have full equality, that immigrants have been dying in the custody of ICE a Federal agency. It never bothers them that Obama is even now, showing he does not care about these issues as a real problem, only as an election year PR disaster. He continues to engage in actions which are prejudicial to women, gays and immigrants.
Some will immediately say, OMG, don’t let Romney do it! What is the argument against Romney? Why be offended that Romney will do something Obama is doing? That makes no sense. Pointing out that Romney will do something is a reason not to vote for him. Pointing out what Obama is doing is a reason not to vote for him. Without an underlying set of principles, these arguments ring hollow.
Then there is the prudential argument. Every power supporters grant to Obama in fact will pass to another president, perhaps even to the evil Mitt Romney. Mitt will engage in these dastardly actions which, while approved under Obama might not look so hot under Romney.
The answer to this conundrum is to have underlying principles as a people, ones that we don’t sell out for a chance to “win” an election. Rather, they are ideals that we hold to for the benefit of all the people in our nation.
http://www.huffingtonpost.com/2012/06/17/joe-arpaios-arrests-six-year-old_n_1603883.html While I do think the action is a good one, I agree that it is somewhat politically motivated. Being on the opposite side of Joe Arpaios just has to be right.
“President Barack Obama’s decision to stop the deportation of some immigrant children wasn’t politically motivated and didn’t expand his executive powers, White House senior adviser David Plouffe said.
The policy is “fully within our ability,” Plouffe said today on CNN’s “State of the Union” program. “This is not amnesty, this is not citizenship.”
The deportation rule is a decision made by the Department of Homeland Security that will enforce the policy, according to Plouffe.
“The Homeland Security attorneys are absolutely confident this is within our authority,” Plouffe said on ABC’s “This Week” program. “We still need a permanent fix.”
Plouffe said congressional action on immigration overhaul is still needed. Obama is ready to sign into law the Dream Act which is designed to provide a path to legal status for younger undocumented immigrants. That legislation has been stalled in Congress. ” Bloomberg News
Is what Pres. Obama did actually an executive order? What number is it? I can’t find that information in any of the articles I’ve read, but I could have missed it.
Pres. Obama is in the position to not enforce a federal law that is on the books and Sec. Napolitano is in agreement to not enforce the law. It is in a way similar to election officials in Florida refusing to enforce the voter registration purge.
It’s obvious that I am a lay-person in terms of law, so don’t hit me too hard on this. But I am very curious to learn.
Professor,
I have to respectfully disagree with you here. While the timing can be viewed as suspect, I don’t think you can ignore the fact that the Republicans in the Senate have un-Democratically blocked the DREAM Act with filibusters and won’t allow it to be even discussed in the House. When the right thing is blocked for partisan and political purposes, no President can wait out for a Congress that has openly stated its number one purpose is to make this President a one term President.
Bush didn’t have a Congress that was obstructing his policies en masse. The Congress and Senate cooperated far too much for my liking and for the good of the country, in my opinion. Just compare the judicial appointments that are still being blocked by the Republicans in the Senate in record numbers and you will see that Congress is broken and we all know who broke it.