President Obama’s claim that he can refuse to deport 800,000 aliens here in the country illegally illustrates the unprecedented stretching of the Constitution and the rule of law. He is laying claim to presidential power that goes even beyond that claimed by the Bush administration, in which I served. There is a world of difference in refusing to enforce laws that violate the Constitution (Bush) and refusing to enforce laws because of disagreements over policy (Obama).
Under Article II, Section 3 of the Constitution, the president has the duty to “take Care that the Laws be faithfully executed.” This provision was included to make sure that the president could not simply choose, as the British King had, to cancel legislation simply because he disagreed with it. President Obama cannot refuse to carry out a congressional statute simply because he thinks it advances the wrong policy. To do so violates the very core of his constitutional duties.
There are two exceptions, neither of which applies here. The first is that “the Laws” includes the Constitution. The president can and should refuse to execute congressional statutes that violate the Constitution, because the Constitution is the highest form of law. We in the Bush administration argued that the president could refuse to execute laws that infringed on the executive’s constitutional powers, particularly when it came to national security — otherwise, a Congress that had a different view of foreign policy could order the military to refuse to carry out the president’s orders as Commander-in-Chief, for example. When presidents such as Jefferson, Jackson, Lincoln, and FDR said that they would not enforce a law, they did so when the law violated their executive powers under the Constitution or the individual rights of citizens.
The president’s right to refuse to enforce unconstitutional legislation, of course, does not apply here. No one can claim with a straight face that the immigration laws here violate the Constitution.
The second exception is prosecutorial discretion, which is the idea that because of limited resources the executive cannot pursue every violation of federal law. The Justice Department must choose priorities and prosecute cases that are the most important, have the greatest impact, deter the most, and so on. But prosecutorial discretion is not being used in good faith here: A president cannot claim discretion honestly to say that he will not enforce an entire law — especially where, as here, the executive branch is enforcing the rest of immigration law.
Imagine the precedent this claim would create. 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.
So what we have here is a president who is refusing to carry out federal law simply because he disagrees with Congress’s policy choices. That is an exercise of executive power that even the most stalwart defenders of an energetic executive — not to mention the Framers — cannot support.