Law Profs: Obama's Deferred Action Not Supported by Constitution

Article author: 
John Feere
Article publisher: 
Center for Immigration Studies
Article date: 
8 October 2012
Article category: 
National News
Article Body: 

A new paper by John Yoo (UC Berkeley School of Law) and Robert J. Delahunty (University of St. Thomas School of Law, Minnesota) raises many questions about President Obama's decision to grant legal status to nearly two million illegal aliens under deferred action and concludes that the president's act "threatens to vest the executive branch with broad domestic policy authority that the Constitution does not grant it." If taken to its logical conclusion, President Obama's lawless action has the power to undermine the entirety of immigration law, while expanding the presidential power in all domestic policy areas.

The professors explain:

For if a president can refuse to enforce a federal law against a class of 800,000 to 1.76 million, what discernible limits are there to prosecutorial discretion? Can a president decline to enforce federal laws barring that class from voting in federal elections? Can a president decline to enforce the deportation statute against all illegal immigrants because of a belief in an "open borders" policy? Can a president who wants tax cuts that a recalcitrant Congress will not enact decline to enforce the income tax laws? Can a president effectively repeal the environmental laws by refusing to sue polluters, or workplace and labor laws by refusing to fine violators?

The professors examine the executive branch's law enforcement powers and responsibilities, arguing that "the Constitution's Take Care Clause imposes on the president a duty to enforce all constitutionally valid acts of Congress in all situations and cases … [and] that there is simply no general presidential non-enforcement power… [and that] the deliberate decision to leave a substantial area of statutory law unenforced or under-enforced is a serious breach of presidential duty." The professors argue that the White House "has provided no adequate excuse or justification for its non-enforcement decision."

...The professors note that while the president has broad powers over foreign affairs, his authority over domestic matters is much more narrow. They conclude:

The conception of executive power we have defended is fully consistent with the attribution to the president of broad constitutional powers over foreign affairs, national security, and military policy. The Framers intended to give Congress the dominant role in regulating domestic matters, while giving the presidency, with its distinctive institutional qualities of energy, secrecy, speed, and unity of purpose, the primary responsibility for foreign affairs. Although immigration straddles domestic and foreign policy, Congress, not the president, has the controlling authority in that area.

The report includes an interesting historical overview that ultimately raises many questions about President Obama's end-run around the legislative process.