Next time, Congress shouldn’t bother. In another chapter in a long-running battle, it voted in December 2010 on the DREAM Act granting amnesty to illegal immigrants brought here as children. The lawmakers appeared to believe that they were entrusted with determining whether or not the legislation became law.
How quaint. Passage of the DREAM Act wasn’t necessary, and its defeat — by a filibuster in the Senate — was an irrelevance. Despite all the votes through the years, all the competing versions of the bill, all the attempts to find a compromise, Congress was nothing more than a Toastmasters meeting adorned with the trappings of legislative power.
Last week the Obama administration activated the central provisions of the DREAM Act by wielding the most awesome power in Washington — President Barack Obama’s say-so. He must imagine himself as fit for the company of the great lawgivers Hammurabi and Moses on the frieze over the Supreme Court. In one memorandum signed by his Homeland Security secretary, he claimed powers that literally once belonged to kings.
Supporters of the DREAM Act felt compelled to pass an amnesty for certain illegal immigrants for the simple reason that current, duly constituted law makes it illegal for them to be here. The president dispensed with all that by deciding to ignore the law that Congress failed to change. In his capacity as the country’s one-man legislature, he exempts illegal immigrants under the age of 30 who came here when they were young from deportation and authorizes them to work.
The writers of the U.S. Constitution knew about overweening executives. They stipulated that the president “shall take Care that the Laws be faithfully executed” to prevent him from arbitrarily picking those that he will enforce or disregard. British kings once made this a practice. It so irked parliament that England had a Glorious Revolution establishing parliamentary supremacy. If James II were around to pass judgment on the president’s executive presumption, he would, no doubt, heartily approve.
Not long ago, the president recoiled from the notion that he could act on his own to effect the DREAM Act. Back in 2008, Obama upbraided President George W. Bush for merely appending so-called signing statements to bills. Signing statements — used to note constitutional qualms about provisions in legislation that otherwise passes muster — are marginalia compared to unilaterally reworking the nation’s laws.
Asked why he wasn’t striking out on his own on the DREAM Act at a September 2011 event with Hispanics, the president responded with an unmistakable rebuke: “The fact of the matter is there are laws on the books that I have to enforce. And I think there’s been a great disservice done to the cause of getting the DREAM Act passed and getting comprehensive immigration passed by perpetrating the notion that somehow, by myself, I can go and do these things. It’s just not true.”
This keen understanding of the constitutional boundaries and legal requirements of his office apparently applied only so long as he wasn’t running even in the polls. With his reelection at stake, “the fact of the matter” looks different. The obligation to enforce the laws changes depending on how many electoral votes might be at stake and on the counsel of David Plouffe, Esquire. The ultimate justification for the president’s move is simple: Colorado, Nevada, New Mexico, and Florida.
It is true, as the administration says, that the executive branch necessarily exercises discretion in enforcing the laws. It can set priorities, but it cannot exempt wholesale a class of people from the law. It is not merely “prosecutorial discretion,” to borrow the administration’s phrase, to hand out brand-new work authorizations. Since when is that the task of prosecutors? The authorizations bestow a legal status that, as a practical matter, will never be taken away.
Even if that’s the right call, it’s not one for President Obama to make. Not for the first time, he’s proven himself callow, cynical, and contemptuous of our constitutional order.
— Rich Lowry is the editor of National Review. He can be reached via e-mail: [email protected] © 2012 King Features Syndicate