海角大神

The secretary of Homeland Security and the counsel to the president (OLC) directed the Justice Department to investigate whether the president had the authority to take contemplated actions with regard to illegal immigrants via executive order. In a letter dated Nov. 19, they found he did not. On Nov. 20, he did it anyway.

Josh Gerson for Politico ("White House releases immigration legal opinion"):

On the one hand, kudos to the administration for promptly releasing the memo. The norm in situations where OLC presents adverse findings is to bury said findings for as long as possible. Releasing the full memo so quickly is the height of transparency and truly laudable.

It鈥檚 worth noting, too, that OLC 鈥� rightly in my view 鈥� found that the president does have the 鈥渁uthority to prioritize the removal of certain categories of aliens over others,鈥� particularly in light of inadequate funding to pursue the removal of all of them. But it specifically found that 鈥渢he proposed deferred action program for parents of DACA recipients would not be a permissible exercise of enforcement discretion鈥� precisely because it is not tethered to existing law. Pages 6 and 7 detail what seems a perfectly reasonable understanding of the law:

On the other hand, it鈥檚 more than a little troubling that the president proceeded to issue the order anyway, contrary to not only the wishes of Congress and public opinion but the best legal advice available to him. As Mr. Gerson notes, the administration is operating on a different legal view than the professionals in the Justice Department:

The difference in the actions taken by Reagan and the elder Bush听and that taken by Obama听is that the former were implementing the clear intent of congressional law, protecting those who had fallen into the cracks of the legislation. In this case, Obama is essentially passing the DREAM Act by executive fiat.

Despite my generally supporting the DREAM Act, I find that outrageous. Indeed, as听noted in the comment thread of another post yesterday, I consider this action impeachable. Note that I鈥檓 not calling for the president鈥檚 impeachment. Aside from it being politically untenable, the fact that Obama鈥檚 action comes in the wake of decades of his predecessors stretching the Constitution beyond recognition makes it difficult to argue that the duly elected 鈥� twice 鈥� president should be removed from office for continuing a trend. But this nonetheless serves as a further and rather substantial weakening of the separation of powers.

Another president will, in the not too distant future, use this precedent to justify an action that supporters of Obama鈥檚 move will find outrageous. At that point, it鈥檒l be too late to complain.

Some of the commentary I鈥檝e seen on this blames congressional Republicans for forcing the president鈥檚 hand here. While they certainly deserve criticism for a lot of things, that notion doesn鈥檛 hold water. Specifically, multiple people have argued that all that needed to happen to have avoided Obama鈥檚 action was for House Republicans to pass the bill passed by the Senate. Indeed, the president himself said that in his speech. But that stands the Constitution on its head. We pass laws in this country when they鈥檙e passed by both Houses of Congress and signed by the president. The fact that the House is predisposed not to pass anything a Democratic president proposes听is frustrating; that doesn鈥檛 allow the president to simply enact said proposals by executive fiat.

UPDATE: Doug Mataconis correctly notes that, contrary to speculation ahead of the speech, 鈥渢he plan announced last night does not extend relief to the parents of DACA children.鈥� It nonetheless goes well beyond existing law. As described by the lead WaPo story on the order,

I don鈥檛 see how this is anything other than Obama enacting essentially all of the DREAM Act by fiat.

UPDATE 2: Walter Dellinger, who served as acting solicitor general under President Clinton, cites the same memo and finds no problem with Obama鈥檚 decree.

But that doesn鈥檛 address the portions of the opinion that I鈥檝e quoted above. Obama is going well beyond simple discretion in taking action that Congress has ordered him to execute; he鈥檚 deciding to ignore portions of existing law and act as though an unpassed law had been passed. Mr. Dellinger continues:

But note that the portions of the OLC memo that I鈥檝e quoted are also based on Chaney and find the opposite of what Dellinger advocates. Regardless, he argues that they were likely overly cautious:

He听points us to a forthcoming posting by Marty Lederman that has since posted. It鈥檚 extensive and mostly addresses hysterical arguments about 鈥渁mnesty鈥� and 鈥渕onarchy鈥� that I鈥檓 not making.听Germane to my concerns, however, he argues:

But, as I鈥檝e already noted, pages 6-7 put some rather strong caveats on that argument.

But the memo likewise concludes that much of the action contemplated and some of that taken goes beyond the 鈥淭ake Care鈥� discretionary authority.

But, again, this stands the Constitution on its head, arguing that the president can simply ignore large swaths of existing law unless Congress specifically passes a law 鈥� presumably, by a veto-proof supermajority 鈥� overturning his order.

Dellinger and Mr. Lederman are right on the larger point that presidents have carved out enormous discretionary power over the years and that the courts have allowed much of that to slide. That鈥檚 why I ultimately don鈥檛 support impeachment here. But I nonetheless believe Obama鈥檚 order has further weakened our system of checks and balances and, indeed, the rule of law.

James Joyner is editor of the Outside the Beltway blog at http://www.outsidethebeltway.com/.听