Legal Case is Airtight, Use by Republican Presidents Extensive and Leader Pelosi Weighs In
As the debate unfolds about the expected executive action on immigration by President Obama, expected to be announced sometime in September, the case for doing so gains supporters and supportive arguments every day. Among the most recent key developments:
Eric Posner, a University of Chicago law professor, in Slate authors a legal analysis entitled, “Yes, Obama Can Stop Millions of Deportations.” Posner writes:
This accusation [of ‘Caesarism’] is based on a misunderstanding of the law and our constitutional system, which gives the president the power of the executive. This power gives the president—and other executive officials like governors and mayors—discretion to choose which laws to enforce and which laws not to enforce. Yes, there are broad limits. For example, executives may not favor or disfavor ethnic or racial groups, which would violate the Constitution’s guarantee of equal protection under the law. But in essence, when Congress gives the president money to go after lawbreakers, it’s understood that the president must set priorities. There is never enough money to investigate, catch, and try all the people who have broken any given law. Discretion is built into the system.
The president’s authority over this arena [immigration] is even greater than his authority over other areas of the law. For decades, presidents of both parties have deferred legal action against millions of people who entered the country unlawfully. As the immigration law experts Adam Cox of New York University School of Law and Cristina Rodriguez of Yale Law School have described in a paper, this has been going on at least since the 1940s
Congress’ decision not to act is just that—it’s not a new law….The noisy complaints of a bunch of House Republicans possess no legal status whatsoever. If President Obama is a latter-day Caesar, intent on overthrowing the Republic and establishing a dictatorship, he has a ways to go. It’s wishful thinking, on the part of Obama’s critics, to argue that it’s unconstitutional for the president to shift immigration policy by changing enforcement priorities. But as the original Caesar said, ‘Men willingly believe what they wish to be true.’
American Bridge research memo outlines recent presidential precedent of executive action on immigration: American Bridge’s new memo offers a detailed overview of past executive actions, including a look at immigration executive actions taken since 1987 by Presidents Ronald Reagan, George H. W. Bush, Bill Clinton, and George W. Bush. As the memo’s introduction notes:
The inflammatory rhetoric of the GOP, including talk of lawsuits and impeachment, would have you believe that Obama is running roughshod over the Constitution, but that’s simply not the case. President Obama has signed fewer executive orders than any president since the 19th century, and multiple Republican presidents have explicitly used executive action to address immigration issues.
Meanwhile, the political case for President Obama to take action is clear. As Jonathan Weisman writes in a New York Times story titled, “On Immigration, G.O.P. Starts to Embrace Tea Party,” the recent House Republican votes in favor of ending DACA and fast-tracking the deportation of Central American children fleeing violence was, to the White House and other observers;
potent evidence that Congress could not be a partner on the pressing, delicate policy decisions to come. A legislative year in which Speaker John A. Boehner of Ohio set out to publicly marginalize the more vocal right-wing members of his conference ended with them emboldened, and with new leaders ready to bring the right back into the fold.
As Republicans have lurched to the right on immigration, there is an opportunity for the president to start the process of reforming the broken immigration status quo. As we’ve noted, the truly radical option on immigration is doing nothing and preserving the lawless status quo. Increasingly, leading Democrats have been reaching a similar conclusion and speaking out on behalf of broad executive action. For example, in an interview with Univisión Radio on Sunday, House Minority Leader Nancy Pelosi (D-CA) stated (per Fusion’s Jordan Fabian):
It would be my hope that the president’s lawyers would advise him on the broadest possible prosecutorial discretion.