You are to be forgiven if you attended the Federalist Society’s recent panel discussion on the president’s duty to enforce the law, read Sam Stein’s coverage of the panel discussion on the Huffington Post, and were left wondering whether Mr. Stein had attended the same panel as you. Fortunately, a recording was made and whether or not you attended in person, you can check the record for yourself.
Mr. Stein seems to begin with the conclusion that the panel conceded that President Obama had a relatively free hand on immigration reform, particularly with regard to his then-prospective ideas about amnesty. (The panel was hosted before President Obama’s announcement.) This is wrong for a number of reasons.
Stein’s first problem is that, while the panel did discuss unilateral executive action and immigration, almost all of that discussion centered on the surge of immigrant youths from Central America that happened months ago, not on acts the president was, at the time of the panel discussion, rumored to be taking in the near future.
And even on the issue of past immigration by youths from Central America, the panel did not reach consensus, with Professor John Baker speaking most critically of the president and the government’s acts during the period. Baker concluded that the administration was guilty of both “non-enforcement” and “undermining” the law, noting that the “surge was triggered deliberately” by the government, and that the government’s claimed surprise about the surge was contrived, betrayed by a Request for Proposal (RFP) for private government contractors to “escort an expected surge” of youths crossing into the U.S. This RFP that was issued months before the surge.
With regard to enforcement of laws more generally, Professor Baker acknowledged that executive-branch excess is not a new phenomenon, but went on to say that the most “starkly poignant” difference between this president and his predecessors is “the president’s claim that ‘I will work with Congress, but if they won’t work with me, I’m going to act.’” No prior president has acted this way, Baker asserted, noting that there is a difference between “executing the law and making the law.”
Speaking of the president’s acts on overreach generally, Baker said in discussion that the president was “undermining the whole foundation of the Constitution.” Stein’s seemingly wishful thinking that the panel discussion excused Obama’s acts is thus far from accurate.
The panel reached no consensus on President Obama’s anticipated immigration executive order (the specifics of which were not known with any level of certainty at the time). Indeed, it is very difficult to conclude that the panel I watched reached consensus on much of anything. (Moreover, the Federalist Society’s panel discussions are by design usually anything but consensus-building exercises.)
There is absolutely nothing in the long-standing practice of prosecutorial discretion that allows the president to re-write the law as he has now done by giving to illegal immigrants work authorization that is specifically forbidden by federal law, even if one accepts his claim that it can be used categorically and not just for individual cases. This president is usurping the Article I legislative powers of Congress, failing to honor his oath of office by not taking care that the laws be faithfully executed, and is acting thus in the face of an election that repudiated his policies. All this is in contravention of the most sacred language of the Constitution, its opening phrase, “We the People.”