The imperial president

Can the president unilaterally amend US law, simply by refusing to enforce it? The Constitution gives him no such power. The Constitution (in article 1, section 7) gives the president the power to veto a bill before it becomes law, but once a bill becomes law, the Constitution (in article 2, section 3) gives the president the duty to see it “faithfully executed”.

President Obama knows that his decision not to enforce immigration law is contrary to the law. He explained in March 2011 that:

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 me to simply through executive order ignore those congressional mandates would not conform with my appropriate role as president.

He reiterated that in July 2011:

THE PRESIDENT: Now, I swore an oath to uphold the laws on the books, but that doesn’t mean I don’t know very well the real pain and heartbreak that deportations cause. . .

Now, I know some people want me to bypass Congress and change the laws on my own.  (Applause.)  And believe me, right now dealing with Congress —

AUDIENCE:  Yes, you can!  Yes, you can!  Yes, you can!  Yes, you can!  Yes, you can!

THE PRESIDENT:  Believe me — believe me, the idea of doing things on my own is very tempting.  (Laughter.)  I promise you. Not just on immigration reform.  (Laughter.)  But that’s not how — that’s not how our system works.

AUDIENCE MEMBER:  Change it!

THE PRESIDENT:  That’s not how our democracy functions.  That’s not how our Constitution is written.

But political considerations have since intervened and he has now decided to do it anyway. Obama’s decision to gut President Clinton’s welfare reform law is similar, excepting only that in this case we lack sound bites of him admitting that his action is improper.

As my readers know, immigration is not an issue about which I am passionate. As a matter of policy, I’m not sure that I disagree with Obama’s action. But I’m truly concerned about the precedent this sets. If this policy stands — and I think it probably will — we will have fundamentally altered the American system of government, giving the president what amounts to a retroactive veto over any law that must be implemented by the executive branch.

Democrats, if they could look past the considerations of the next election cycle, ought to be just as concerned about this. As John Yoo points out in his devastating critique of Obama’s move:

President Romney could lower tax rates simply by saying he will not use enforcement resources to prosecute anyone who refuses to pay capital gains tax. He could repeal Obamacare simply by refusing to fine or prosecute anyone who violates it.

In fact, in the long-run this precedent will probably favor Republicans more than Democrats, since the president is much more often a Republican than a Democrat. But it means a terrible blow against the rule of law.

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