Obama’s Authority To Act On Immigration

Linker thinks it highly suspect:

What is so galling about the president’s pending circumvention of federal immigration law is that the White House hasn’t even attempted to justify it on grounds of necessity — no doubt because any effort to do so would be risible. The nation obviously faces no immigration emergency that could possibly justify the kind of extralegal action that Obama is contemplating. Cultivating a new constituency for the Democratic Party certainly doesn’t rise to that level, but neither does a big-hearted attempt to stop often cruel deportations of individuals and families residing in this country illegally.

Along the same lines, Douthat hits back at the argument that Obama’s actions don’t matter because they can be reversed by the next president:

As long as the United States elects its chief executives it will always be true that one president’s unilateral policy move can be theoretically reversed by the next one. But that reality doesn’t really tell us much of anything about whether a particular moves claims too much power for the executive branch itself.

Even in the fairly unlikely event that Chris Christie or Marco Rubio cancels an Obama amnesty, that is, the power itself will still have been claimed and exercised, the line rubbed out and crossed; the move will still exist as a precedent, a model, a case study in how a president can push the envelope when Congress doesn’t act as he deems fit.

Which is why it would have unreasonable to expect, say, liberal and libertarian critics of George W. Bush’s expansive claims of wartime authority to be mollified by being told: “Don’t worry, when you elect a president, you can run Guantanamo and the black sites and the N.S.A. the way you want, so stop complaining and just focus on the next election.” Those critics did focus on the next election, and in 2008 they won it, and put a liberal constitutional lawyer in the Oval Office in Bush’s stead. But in the end the Bush administration created precedents and facts on the ground that his notionally civil libertarian successor just accepted, and claimed powers that a liberal president has often (if oh-so-reluctantly) exploited to the hilt

Benjamin Wittes fails to see what laws Obama is breaking:

Republicans are tossing around all sorts of rhetoric about Obama’s decision to proceed unilaterally. John Boehner has floated the idea of litigating the matter. Some Republicans have described such an “amnesty” as a constitutional crisis. Some have even talked about impeachment. All of that assumes, of course, that the coming action is illegal, that the statute itself doesn’t give Obama authority to decide to stay his hand with respect to lots of deportations. Yet I have seen no news story or legal analysis that contains an actual argument to that effect. …

Obama himself has sown doubt about this own authority to effectuate this policy outcome without congressional involvement—stating in the past that he would love to do it, but did not think he had the legal authority. But at least as I read the relevant provisions of the Immigration and Naturalization Act, the statute actually gives him wide discretion to decline to deport non-criminal aliens who are legally deportable. Specifically, it contains no directive requiring the administration to pursue garden variety deportation cases. In fact, it has very little to say at all—except with respect to aliens who have committed crimes—about what happens if the President just doesn’t feel like deporting people. That silence seems to me to convey the authority not to act, both in the case of an individual whose circumstances authorities find compelling and also in the case of five million people whose circumstances authorities find compelling or whose status authorities choose for policy reasons to regularize.