The President's Overreach

President Obama is taking an unprecedented action which threatens to throw this nation into a constitutional crisis and will almost certainly insure that relations between Republicans and Democrats will grow even more sour than they already are. The president has chosen to grant amnesty to 4 million immigrants in this country illegally, a move he himself has insisted on numerous occasions that he had no constitutional authority to do.

The issue at hand is not whether these immigrants should be allowed to stay - I've advocated for years on VP and elsewhere a policy very similar to what the president outlined tonight - it's whether any president has the constitutional right to essentially usurp the prerogative of the legislature to make law.

Speaker of the House John Boehner's office has compiled a list of twenty two instances wherein Mr. Obama insisted that he had no authority to do what he has now said he will do. Here are three:

1. I am president, I am not king. I can't do these things just by myself. We have a system of government that requires the Congress to work with the Executive Branch to make it happen. I'm committed to making it happen, but I've got to have some partners to do it....The main thing we have to do to stop deportations is to change the laws....[T]he most important thing that we can do is to change the law because the way the system works – again, I just want to repeat, I'm president, I'm not king. If Congress has laws on the books that says that people who are here who are not documented have to be deported, then I can exercise some flexibility in terms of where we deploy our resources, to focus on people who are really causing problems as a opposed to families who are just trying to work and support themselves. But there's a limit to the discretion that I can show because I am obliged to execute the law. That's what the Executive Branch means. I can't just make the laws up by myself. So the most important thing that we can do is focus on changing the underlying laws. (10/25/10)

2. I swore an oath to uphold the laws on the books....Now, I know some people want me to bypass Congress and change the laws on my own. Believe me, the idea of doing things on my own is very tempting. I promise you. Not just on immigration reform. But that's not how our system works. That’s not how our democracy functions. That's not how our Constitution is written. (7/25/11)

3. This is something I’ve struggled with throughout my presidency. The problem is that I’m the president of the United States, I’m not the emperor of the United States. My job is to execute laws that are passed. And Congress right now has not changed what I consider to be a broken immigration system. And what that means is that we have certain obligations to enforce the laws that are in place even if we think that in many cases the results may be tragic. (2/14/13)

As a candidate in 2008 Senator Obama condemned the very sort of arrogation of power he now tells us he plans to effect:

1. I take the Constitution very seriously. The biggest problems that we’re facing right now have to do with [the president] trying to bring more and more power into the executive branch and not go through Congress at all. And that’s what I intend to reverse when I’m President of the United States of America.(3/31/08)

2. We’ve got a government designed by the Founders so that there’d be checks and balances. You don’t want a president who’s too powerful or a Congress that’s too powerful or a court that’s too powerful. Everybody’s got their own role. Congress’s job is to pass legislation. The president can veto it or he can sign it....I believe in the Constitution and I will obey the Constitution of the United States. We're not going to use signing statements as a way of doing an end-run around Congress.(5/19/08)

Of course, that's what he announced tonight that he's going to do. There are things the Republicans can do to try to stymie him short of impeachment which isn't going to happen since it would take a 2/3 of the senators, or a total of 67, to vote to convict. There will be 54 Republicans in the new Congress seated in January which means there'd have to be 13 Democrats who would go along with impeachment and that seems more than far-fetched.

Other options are discussed here. One of the most worrisome things about the president's action is the precedent Mr. Obama is setting. Suppose the next president, perhaps a Republican, decides he doesn't want to enforce the Clean Air act, the tax laws, or welfare programs? If a president can now unilaterally decide which laws he will enforce and which he won't, the Constitution is void and we no longer live in a democratic republic, we instead live in a dictatorship headed by a modern day Caesar.

The policy he presented tonight, the policy he'll soon promulgate by executive order, may be what should be done, I think it mostly is (although I'm deeply skeptical that the president is, after six years in office, finally serious about genuinely securing the border), but the way he's doing it is extremely destructive to the constitutional foundation of this country.