Predictably, those of my Progressive friends on Facebook who are at all politically aware, are kvelling about Obama’s executive order on amnesty. “Best president ever!” “I totally agree with what he did.” “He did the right thing.” My Facebook page is filling up with those statements. To those Progressive friends, I have the following, initially sarcastic, response:
I have to admit that I’m impressed with what President Obama did, mostly because he’s bucking a famed constitutional scholar’s take on precisely this issue:
With respect to the notion that [the president] can just suspend deportations through executive order, that’s just not the case, because there are laws on the books that Congress has passed. *** The executive branch’s job is to enforce and implement those laws. *** There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for [the president] to simply through executive order ignore those congressional mandates would not conform with [the] appropriate role as President. [March 28, 2011.]
Well, I think it is important to remind everybody that, as I said I think previously, and [the president is] not a king. [He’s] the head of the executive branch of government. [He is] required to follow the law. [January 31, 2013.]
The problem is that you know [he’s] the president of the United States. [He’s] not the emperor of the United States. [His] job is to execute laws that are passed, and Congress right now has not changed what [the president] consider[s] to be a broken immigration system. [February 14, 2013.]
[The President’s] job in the executive branch is to carry out the laws that are passed. Congress has said, here’s the law when it comes to those who are undocumented, and they allocate a whole bunch of money for enforcement. What [the president is] able to do is make a legal argument . . . which is that given the resources we [the Americans] have, we can’t do everything that Congress has asked us to do, what we can do is then carve out the DREAM Act folks….
But if we start broadening that, then essentially, [the president] would be ignoring the law in a way that . . . would be very difficult to defend legally. So that’s not an option. [A]dvocates of immigration reform start losing heart and immediately thinking, well, somehow there’s an out here—that if Congress doesn’t act, we will just have the president sign something and that will take care of it, and we won’t have to worry about it. [T]here is a path to get this done and that is through Congress. [September 17, 2013]
That scholar was right, of course. The Constitution is pretty clear about the division of power in the federal government. Using technicalities to enact vast legislative reforms — especially after the party opposing those forms won both houses of Congress by a pretty large margin — is indeed the act of a king, rather than the head of the executive branch of government. For those who thought the whole point of the American revolution was to have divided government, not a monarchical system, President Obama’s actions are, to say the least, disturbing.
My concerns have nothing to do with immigration, and everything to do with separation of powers. This is a constitutional slap in the face.
By the way, here are a few more of that same scholar’s opinings about the serious limits that the Constitution places on a president’s power to remake the law. Charles C. W. Cooke offers the perfect summation of what that constitutional scholar became the instant he held the reins of power in his hands:
[J]ust one short year after he had told students that he was hamstrung by the [constitutional] rules, the president did precisely what he said he could not, refusing to “enforce and implement” those “very clear” laws and abdicating disgracefully his “appropriate role as president.” Obama called this maneuver “DACA,” although one imagines that James Madison would have come up with a somewhat less polite term.
Evidently, the new approach suited the president. Soon thereafter, he began to make extra-legislative changes to Obamacare, without offering any earnest legal justifications whatsoever; he responded to Congress’s refusal to raise the minimum wage by rewriting the Service Contract Act of 1965; and, as a matter of routine, he took to threatening, cajoling, and mocking Congress, and to informing the country’s lawmakers that by declining to consent to his will they were refusing to do “their jobs.” In Obama’s post-2011 world, it seems, legislators are not free agents but parliamentary subordinates possessed of two choices: either they do what he wants, or they watch him do what he wants. Refusing assent seems to be regarded as an entirely illegitimate option. This, it should be perfectly obvious, is the attitude not of the statesman, but of the mugger. “Give me your wallet,” the ruffian says, “or I will take it by force.” That progressives who once championed the man for his calm and his virtue have taken to twisting themselves into knots in his defense should tell us all we need to know about their broader sincerity — and his.
I urge you to read Cooke’s entire article, because it’s a good rundown of his imperial acts in all areas of his presidency, not just the ones referenced above. As Cooke says, there’s something deeply symbolic about the fact that Obama chose Las Vegas — the American home of Caesar’s Palace — as the forum for his latest executive order.
Also, Andrew McCarthy makes mincemeat of Obama’s “prosecutorial discretion” claim.