Obama oversteps on immigration order

June 23, 2012


— “With respect to the notion that I can just suspend deportations (of immigrants brought here illegally as children) through executive order, that’s just not the case, because there are laws on the books that Congress has passed.”

     — President Obama, March 28, 2011

Those laws remain on the books. They have not changed. Yet Obama last week suspended these very deportations — granting infinitely renewable “deferred action” with attendant work permits — thereby unilaterally rewriting the law. And doing precisely what he himself admits he is barred from doing.

Obama had tried to change the law. In late 2010, he asked Congress to pass the DREAM Act, which offered a path to citizenship for hundreds of thousands of young illegal immigrants. Congress refused.

When subsequently pressed by Hispanic groups to simply implement the law by executive action, Obama explained that it would be illegal. “Now, I know some people want me to bypass Congress and change the laws on my own. ... But that’s not how our system works. That’s not how our democracy functions. That’s not how our Constitution is written.”

That was then. Now he’s gone and done it anyway. It’s obvious why. The election approaches and his margin is slipping. He needs a big Hispanic vote and this is the perfect pander. After all, who will call him on it? A supine press? Congressional Democrats? Nothing like an upcoming election to temper their Bush 43-era zeal for defending Congress’ exclusive Article I power to legislate.

With a single Homeland Security Department memo, the immigration laws no longer apply to 800,000 people. By what justification? Prosecutorial discretion, says Janet Napolitano.

This is utter nonsense. Prosecutorial discretion is the application on a case-by-case basis of considerations of extreme and extenuating circumstances. No one is going to deport, say, a 29-year-old illegal immigrant whose parents had just died in some ghastly accident and who is the sole support for a disabled younger sister and ailing granny. That’s what prosecutorial discretion is for. The Napolitano memo is nothing of the sort. It’s the unilateral creation of a new category of persons — a class of 800,000 — who, regardless of individual circumstance, are hereby exempt from current law so long as they meet certain biographic criteria.

This is not discretion. This is a fundamental rewriting of the law.

Imagine: A Republican president submits to Congress a bill abolishing the capital gains tax. Congress rejects it. The president then orders the IRS to stop collecting capital gains taxes, and declares that anyone refusing to pay them will suffer no fine, no penalty, no sanction whatsoever. (Analogy first suggested by law professor John Yoo.)  

It would be a scandal, a constitutional crisis, a cause for impeachment. Why? Because unlike, for example, war powers, this is not an area of perpetual executive-legislative territorial contention. Nor is cap-gains, like the judicial status of unlawful enemy combatants, an area where the law is silent or ambiguous. Capital gains is straightforward tax law. Just as Obama’s bombshell amnesty-by-fiat is a subversion of straightforward immigration law.

It is shameful that congressional Democrats should be applauding such a brazen end-run. Of course it’s smart politics. It divides Republicans, rallies the Hispanic vote and pre-empts Marco Rubio’s attempt to hammer out an acceptable legislative compromise. Very clever. But, by Obama’s own admission, it is naked lawlessness.

As for policy, I sympathize with the obvious humanitarian motives of the DREAM Act. But two important considerations are overlooked in concentrating exclusively on the DREAM Act poster child, the straight-A valedictorian who rescues kittens from trees.

First, offering potential illegal immigrants the prospect that, if they can successfully hide long enough, their children will one day freely enjoy the bounties of American life creates a huge incentive for yet more illegal immigration.

Second, the case for compassion and fairness is hardly as clear-cut as advertised. What about those who languish for years in godforsaken countries awaiting legal admission to America? Their scrupulousness about the law could easily cost their children the American future that illegal immigrants will have secured for theirs.

But whatever our honest and honorable disagreements about the policy, what holds us together is a shared allegiance to our constitutional order. That’s the fundamental issue here. As Obama himself argued in rejecting the executive action he has now undertaken, “America is a nation of laws, which means I, as the president, am obligated to enforce the law. I don’t have a choice about that.”

Except, apparently, when violating that solemn obligation serves his re-election needs.

— Charles Krauthammer is a columnist for Washington Post Writers Group.


cato_the_elder 6 years ago

Obama is one of the most corrupt presidents ever to hold the office. He has criticized our Constitution as outmoded for the times, and has demonstrated that he has no difficulty running roughshod over it.

The Constitutional Scholar-in-Chief has now unilaterally done by fiat that which only a year ago he specifically said he did not have the power to do.

The American public has come to find out what "transparency" means, Chicago-style.

jafs 6 years ago

This would be convincing if the author were equally concerned about this sort of thing regardless of which side did it, but I suspect that's not the case.

Interestingly, I agree with him about the policy - it's flawed for exactly the reasons he gives.

Flap Doodle 6 years ago

What desperate ploy will the tyrant next pull to try to get another term at 1600 Penn Ave? Stay tuned.

Patricia Davis 6 years ago

Better that George II who got us in two wars and then used the tactic that during a war, a president should be reelected.

loreeta 6 years ago

Can't really say Obama didn't get us involved indirectly with other conflicts. Libya intervention for oil , silence on Egypt. A dictator is a dictator. Why support Egypt, Saudi and Bahrain but not Libya. On the verge conflict with Iran. This is all in pres Obama's term.

Something to think about.

loreeta 6 years ago

We are screwed no matter who takes office next.

camper 6 years ago

Guessed by the title that it was a Krauthammer piece before even clicking.

camper 6 years ago

In other news, deportations have increased for gang members from Central America. This started under President Bush and continues with President Obama. I don't know enough about the work permit issue, but these 800,000 people, most of which are looking to support there families, something we'd do if we were in their shoes. Also hypocritical because we Americans have it set up to rely on cheaper labor. There is some greed in this on our part.

I believe the biggest problem is Mexico itself. They have corruption and a very weak government, education and infrastructure. Until Mexico gets its house in order and has more opportunity for its citizens, the problem won't change.

roadwarrior 5 years, 12 months ago

very well said. Laws are tools. The Homeland Securities Act Bush enacted opened this window. It should be closed. Should never have been opened. We cannot change what we do not acknowledge. Thanks to this debate, the cats out of the bag.

tomatogrower 6 years ago

I guess Obama could have waited for Congress to do something. Oh wait, we have a do nothing Congress. Pigs aren't flying yet.

beatrice 6 years ago

I have no doubt you felt exactly the same when past presidents used executive powers.

Of course, I can only type this response. I could never have said it with a straight face.

jafs 6 years ago

Of course you did, because he was also a D.

I'm pretty sure that when R presidents do the same thing, you don't have the same reaction, which is unfortunate.

Partisan sniping isn't useful, and lacks integrity, in my opinion.

beatrice 5 years, 12 months ago

And of the times Republicans invoked the privilege? Must be a strange existence living with party blinders on at all times.

loreeta 6 years ago

Charles krathummer may be not in favor of democrats, but president violated his own laws and it's very clear from his speech of mar 2011 and his actions today.

Even if some us agree that he needed to take action because congress is do-nothing congress, there are many high priority issues waiting action, why was giving amnesty and work permits to almost 1 million illegals his highest priority? This president has his priorities in order only for his re-election but messed up priorities for the good of the country.

beatrice 6 years ago

Overstep, or just a big step? It was certainly a bold step.

Maddy Griffin 5 years, 12 months ago

Why don't you show us how you know more about the Constitution than our Former Constitutional Law Professor.

jhawkinsf 6 years ago

The biggest problem with this is that it's only step one. Steps two through whatever must follow. We can say we're doing this, the granting of some type of legitimacy to the 800,000, for humanitarian reasons. But what happens when the parents are picked up? Will we be in the business of deporting some members of families and not others. So there is step two, families of those 800,000 get to stay. And if some family members are still back in their country of origin, can we really deny them access to their family members here? Step three. And it goes on and on. Imagine one of the 800,000 serving in the military and becomes injured, would we deport their caregiver? Or if one of the 800,000 is caring for their elderly parents who face deportation themselves? The problem is that this isn't an honest discussion. The 800,000 is step one on the road to an amnesty for the full 12 million already here and then the many millions more who will be encouraged to break our laws, knowing that we compassionate Americans will eventually let them all stay. That's what the reality is. And that's what should be discussed here.

loreeta 6 years ago

I agree with your entire post until I came to "compassionate" The 800K illegals and eventually their 12 million people get to stay and increase illegal immigration because the politicians especially democrats see thir vote bank in the Latino community. It was not a decision of the compassionate Americans to grant them amnesty.

Richard Heckler 6 years ago

This is nothing but political hysteria coming from the reckless Repub RINO party because they do not want to talk about the largest issue that does not go away and repeats itself:

  1. ENTITLEMENT - Bailing out The Reagan/Bush Savings and Loan Heist aka home loan scandal sent the economy out the window costing taxpayers many many $$ trillions (Cost taxpayers $1.4 trillion), Plus millions of jobs, loss of retirement plans and loss of medical insurance. http://rationalrevolution0.tripod.com/war/bush_family_and_the_s.htm

  2. ENTITLEMENT - Bailing out the Bush/Cheney Home Loan Wall Street Bank Fraud cost consumers $ trillions, millions of jobs, loss of retirement plans and loss of medical insurance. Exactly like the Reagan/Bush home loan scam. Déjà vu can we say. Yep seems to be a pattern. http://www.dollarsandsense.org/archives/2009/0709macewan.html

  3. ENTITLEMENT - Bush/Cheney implied many financial institutions were at risk instead of only 3? One of the biggest lies perpetrated to American citizens. Where did this money go? Why were some banks forced to take bail out money? http://www.democracynow.org/2009/9/10/good_billions_after_bad_one_year

CK has no idea what he is talking about. He writes fairy details. Reagan/Bush opened the floodgates for south of the border immigrant slave labor.

Then Reagan/Bush did nothing. Bush/Quale did nothing. Clinton/Gore did nothing

GW Bush blew billions on projects such as building a wall along that border.... I thought Reagan implied repubs were against walls.

Then took on a virtual fence project through BOEING that had never been applied to a situation such as this = billions in pork barrel.

There are some very wealthy republicans who live along that border that do not want walls and virtual fences invading their privacy or their property. It's in the news.

What can Obama do? Not a helluva lot... face it.

How about busting employers for hiring immigrants without proper credentials? There is no need for new laws or pork barrel projects.

ThePilgrim 6 years ago


I agree that Obama unilaterally passes exec orders to skirt laws. Ridiculous, hypocritical things that the Left were railing against Bush for.

But News flash - Most of the illegals in Western Kansas, and elsewhere, have seemingly valid, albeit fraudulent, social security cards and documentation which allow them to get driver's licenses, vote, and continue to skirt these laws anyway. It's a well known fact that every meat packing plant in Dodge City and Garden City have many folks with duplicate social security numbers - you can't even use a computer program for HR that uses SSN's as the primary key/unique identifier or the program will have database violations and crash.

Schools, Dept of Education, SRS, Medicaid, and all government agencies that use and track SSN's know that they have illegals who have duplicate SSN's. They know that three or four duplicates of a single SSN exist in Dodge City alone. And they look the other way and don't do anything about it now. So why is any declaration of amnesty a surprise for anyone?

ThePilgrim 6 years ago

The big thing that should be cracked down on is identity theft. Unlike what the Lifelock, etc. commercials say, the largest perps of identity theft are not trying to steal your SSN for credit card fraud. They are trying to steal it to create these fraudulent docs to sell to the illegals.

booyalab 6 years ago

"because there are laws on the books that Congress has passed.” ...and then election time rolled around.

jfs1047 6 years ago

I find it amazing that a country of immigrants continues to argue whether folks who have been here for most of their lives, through no fault of their own, cannot stay, even though they are productive, law-abiding people.


Maddy Griffin 5 years, 12 months ago

And in this day and age, even an ordinary American couldn't afford it.

Getaroom 6 years ago

More of the same from from this bilge pump mouth piece for Faux Nuz. Lies and distortions to the magnitude of x10. Pure BS.

beatrice 5 years, 12 months ago

The hysteria is rather hysterical, don't ya think?

And "gansta' "? Really? Not even the proper spelling of "gangster"? Wow.

Before you come back with your obvious "race card" response, please point out to us at least one time on here where you have called a white politician a "gansta' ". Please.

Jim Johnson 6 years ago

Well there are a few things going on right now that makes you think smart citizens are starting to wake up and realize that there won't be an America for their children if things don't change quickly.

beatrice 5 years, 12 months ago

Don't you mean "gansta style politician"?

jayhawklawrence 5 years, 12 months ago

At least Obama's decision on immigration was a humanitarian one which is not what I can say about the Republican proposals.

It appeared to me that only Gingrich made any reasonable suggestions regarding this issue.

It is a mystery to me, as it is to most Americans, why politicians have not been able to come up with a sensible immigration policy and enforce it.

And if they cannot come up with a sensible and unified approach to the immigration issue, why should we believe they can accomplish anything at all.

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