Presidents Can't Rule by Decree

US News, June 19, 2012

There are really two questions here. The first is whether it would be advisable to amnesty long-term illegal immigrants who were brought here as young children; the second is whether the president's unilateral move was an appropriate, or even lawful, means of doing that.

As to the first, I think there is indeed an argument for legalizing certain illegal aliens who have been here since they were infants or toddlers and whose identity has been formed here. But such a measure would have to be very different from the proposed DREAM Act, which also covers people who came as teenagers and which includes no enforcement provisions to ensure we don't just have another DREAM Act 10 years from now.

But the more immediate problem is that the president is violating our constitutional order under the pretext of exercising discretion. Every cop and prosecutor has to use discretion in choosing between two cars to pull over or two cases to take to court. But this latest announcement crosses the line by setting up a sweeping amnesty program for up to 1.4 million illegal immigrants using criteria from proposed legislation that was voted down by Congress. To call this simply an exercise of discretion within existing law is an Orwellian abuse of language.

The specific issue is almost irrelevant—whether immigration or environment or taxes or education, the president doesn't have the right to legislate by decree just because he's displeased with what comes out of Congress. If Congress allows this to stand—and it could simply cut off funds to implement this new policy, if it wanted to—a dangerous precedent will have been set. Suppose a future Republican president is frustrated that a future Democratic Congress won't pass a capital-gains tax cut he has lobbied for; what stops him from simply using "discretion" to not go after those who have chosen to pay the lower rate he supports?

The Constitution says the president "shall take Care that the Laws be faithfully executed." President Barack Obama has essentially proposed an amendment to that clause: "…unless he doesn't feel like it." Even supporters of the DREAM Act amnesty should be deeply disturbed by this erosion of the rule of law.