Federalist Society Legal Scholars Begrudingly Accept Obama's Immigration Powers.

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Spike Trader

“I think the roots of prosecutorial discretion are extremely deep,” said Christopher Schroeder, the Charles S. Murphy Professor of Law and Public Policy Studies at Duke Law School. “The practice is long and robust. The case law is robust. Let me put it this way: Suppose some president came to me and asked me in the office of legal counsel, ‘Is it okay for me to go ahead an defer the deportation proceedings of childhood arrival?’ Under the present state of the law, I think that would be an easy opinion to write. Yes.”

Schroeder was speaking specifically about the deferred action program that Obama already has put into place -- the one affecting so-called Dreamers who were brought to the U.S. as children. But later, Schroeder expanded his legal reasoning.

“I don’t know where in the Constitution there is a rule that if the president’s enactment affects too many people, he’s violating the Constitution,” Schroeder said. “There is a difference between executing the law and making the law. But in the world in which we operate, that distinction is a lot more problematic than you would think. If the Congress has enacted a statute that grants discretionary authority for the administrative agency or the president to fill in the gaps, to write the regulations that actually make the statute operative, those regulations to all intents and purposes make the law.

“I agree this can make us very uncomfortable. I just don’t see the argument for unconstitutionality at this juncture,” Schroeder added.

http://www.huffingtonpost.com/2014/11/18/federalist-society-obama-immigration_n_6182350.html
 
If you feel that I'm hijacking your thread with this, let me know before my hour's up and I'll move it to a new thread.
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An Imperial President?
Hardly. The smarter Republican response is to pass their own legislation, not howl in protest.
By Jacob Weisberg


141118_POL_McConnellBoehner.jpg.CROP.original-original.jpg

Speaker of the House John Boehner and Republican Senate Leader Mitch McConnell on June 26, 2014, at the U.S. Capitol in Washington, D.C.
Photo by Paul J. Richards/AFP/Getty Images

With a clear majority in both houses, Republicans face a difficult choice about whether to compromise with President Obama on a series of issues. Obama has already made it clear that he won’t be waiting for their decision. Instead, he is going to spend his final two years in office exploring the frontiers of executive power.

Last week brought two expressions of this new posture: the secretly negotiated agreement Obama announced in China with President Xi Jinping, and a statement he released on net neutrality that advocated regulating Internet Service Providers as “common carriers.” As soon as this week, the president is expected to move ahead on a third, more politically volatile issue of allowing millions of illegal residents to stay and work legally in the United States. The first announcement provoked Republican catcalls. The second made them howl. The third is rendering them apoplectic. At the extreme end, Rep. Matt Salmon, a Republican from the border state of Arizona, says Obama’s amnesty plan would constitute an “impeachable offense.”

Obama’s rationale of taking matters into his own hands is that all three are issues on which the GOP majority has refused to act. On climate change, House Republicans have used Chinese inaction as a pretext for doing nothing to reduce emissions themselves. On net neutrality, they have declined to give the Federal Communications Commission the authority it needs to prevent cable companies from creating fast and slow lanes on the Internet. On immigration, they have tabled comprehensive immigration reform legislation that would address the status of approximately 12 million undocumented long-term residents.

Presidential systems, as opposed to parliamentary ones, produce executive-legislative conflict by their nature—see under: Latin America. The irony is that it is Democrats, who dominated the legislative branch between the 1950s and the 1990s, who have historically been most opposed to unilateral action by the executive branch. At the end of the Nixon years, the liberal historian Arthur Schlesinger decried the rise of an “imperial presidency” with its expanding zones of secrecy and dubious assertions of executive privilege. Through the Reagan years, Democrats opposed unapproved covert action and demanded respect for Congress’s constitutional power to declare war. After 9/11, they again complained about George W. Bush’s broad claims of authority around national security and his practice of appending secret signing statements to legislation he didn’t like, reserving the right to ignore it.

Now the shoe is on the other foot. It is the Republicans who dominate Congress and expect to do so going forward, whereas Democrats hold the White House and hope that Hillary Clinton will retain it for them in 2016. A more powerful presidency that can navigate around Congressional obstinacy is in their interest, not just in the short term, but for the foreseeable future. This logic has finally persuaded a liberal president whose previous job was teaching Constitutional law, and who did not come to office expecting to be denounced as a dictator. As recently as last year, Obama insisted that he lacked the legal authority to do what he now proposes on immigration. “I’m not the emperor of the United States,” he said on one occasion. “My job is to execute laws that are passed.”

The president’s recent actions stand in contrast to those of Bill Clinton, who after losing control of Congress in 1994, pursued poll-tested micro-initiatives calculated to show his relevance without upsetting anyone. Obama is invoking expanded authority on issues that do matter, and that are meant to provoke the other side. When it comes to immigration, he intends to make nonenforcement of the law his official policy. He would expand a program to stop issuing deportation orders against illegal residents who were brought to the United States as children, and against parents with children who are citizens. These steps could allow up to 5 million people to stay legally.

Congress is already reacting to this by challenging the president’s claim of authority in various ways. There’s talk again of shutting down the government by holding up annual appropriation bills and of holding presidential appointments hostage. But those steps will highlight the system’s current dysfunction, underscoring the rationale for Obama’s embrace of unilateralism. A smarter way to respond would be for Congress to assert its own Constitutional authority by finally passing legislation on the issues in question. Sending the President bills on climate change, net neutrality, and immigration—even bills he might veto—would undermine the president’s case for acting on his own.
 
This Is How Much The World Has Changed Since Last Time We Passed Immigration Reform


To understand how long overdue comprehensive immigration reform is, consider this: The last time the United States passed comprehensive immigration legislation, Republicans played a leading role in crafting the bill, the Berlin Wall had yet to fall, the U.S. had sided with Saddam Hussein in the Iran-Iraq War and the legalization of gay marriage was basically unthinkable.

Illegal immigration continued apace following the 1986 reform signed by then-President Ronald Reagan that legalized the status of nearly 3 million people, largely because of economic and demographic reasons that have little to do with border walls or nativist rhetoric.

These days, apprehensions for illegal immigration have plummeted to about a quarter of the peak of 1.6 million in the year 2000. Nevertheless, spending on border enforcement has skyrocketed. Immigration enforcement now takes up more money than all other federal law enforcement agencies combined. The number of Border Patrol agents has doubled to 20,000 over the last decade.


In response to opposition to reform in Congress, particularly among House Republicans, President Barack Obama is preparing to announce an executive action to offer deportation relief expected to apply to millions of undocumented immigrants.

Despite the fact that by any reasonable standard the problem of illegal immigration is more under control now than it has been over the last four decades, many continue to clamor for more border enforcement and fume at the possibility of executive deportation relief. U.S. Rep. Steve King (R-Iowa) has said the planned executive action will provoke a "constitutional crisis," while U.S. Rep. John Boehner (R-Ohio) is reportedly considering suing the Obama administration if the president goes through with it.

Despite their objections, the Associated Press reports that previous administrations, including those of Ronald Reagan and George H.W. Bush, have used their executive authority to shield undocumented immigrants from deportation.

To get an idea of how long overdue we are for another major immigration reform, here are nine seemingly intractable obstacles the world has overcome since the last time the United States passed comprehensive immigration legislation.

http://www.huffingtonpost.com/2014/11/18/immigration-reform-overdue_n_6174438.html
 
A couple of professors engaging in intellectual diddling on a panel do not represent the consensus of the Federalist Society. One of the panelists thought the president is not bound by the Supreme Court.

If Obama can change our immigration laws with the stroke of a pen, against the clear consensus of the congress, we might as well just disband the congress. What purpose do they serve? If they won't pass legislation to do things Obama wants, he will just issue an edict. His hero Hugo Chavez would be so proud of him.

It doesn't take a constitutional scholar to understand that there is a big difference in prosecutorial discretion and repealing a valid law by executive edict. Under Obama's theory, the next republican president could refuse to enforce the capital gains tax or the estate tax. Nixon was driven from office by the threat of impeachment for much less.
 
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