Why Obama Delayed Immigration Action Until After the Election

by John Yoo

President Obama’s announcement that he is going to delay his executive action on immigration shows that even his own administration realizes its constitutional transgressions. If the president was confident that he was on firm legal ground, he should have no difficulty in bringing the issue before the American people before the elections. In fact, he ought to campaign on the issue before the election so as to seek a mandate from the electorate. The more difficult the constitutional question, the more important it is to gain public support.

When Thomas Jefferson (who had an unduly cramped understanding of the federal government’s ability to add new territory and states), feared the Louisiana Purchase might be unconstitutional, our third president wrote:

A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means.

In such situations, Jefferson thought, the president could act first but should seek congressional and popular approval. “The Legislature in casting behind them metaphysical subtleties, and risking themselves like faithful servants, must ratify & pay for it, and throw themselves on their country for doing for them unauthorized what we know they would have done for themselves had they been in a situation to do it.” Jefferson believed it was best to admit openly the violation of the Constitution and seek popular support, which he believed was healthier for the constitutional system. “We shall not be disavowed by the nation,” he predicted, “and their act of indemnity will confirm and not weaken the Constitution, by more strongly marking out its lines.” 

Compare this to President Obama. Our immigration problem is nowhere near the circumstances Jefferson mentions here, which he believes would justify an exercise of executive power beyond the Constitution. There is plenty of time for the president and Congress to deliberate together — there is no emergency of time that threatens public safety. President Obama even has the November 2014 elections as a vehicle to seek popular support should he be acting beyond his constitutional authority.

Once again, the president shows that he is not up to the best of his predecessors — and that he has failed to understand the nature of his office and duties.

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