There’s good news and bad news about President Obama’s immigration executive action. The bad news first. He brazenly expanded the size and scope of prosecutorial discretion in an unprecedented executive power grab. But there is a silver lining: In justifying the reach of the policy, his own Justice Department imposed important constitutional limits on executive power.
If we take seriously the DOJ Office of Legal Counsel’s 33-page memorandum spelling out what the president may and may not do under the auspices of prosecutorial discretion, it becomes evident that Obama’s executive action on immigration, as well as his unilateral waivers of provisions of Obamacare, exceed the scope of that discretion. The president has violated and will likely continue to violate the outer bounds that his own administration has set. By attempting to craft a limiting principle, the Justice Department has backed the president into an unconstitutional corner.
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