Obama vs The Rule of Law: On The President’s Selective Enforcement of Immigration Laws

As you no doubt know, President Obama has decided to unilaterally refuse to execute certain provisions of immigration law. Even though I oppose those laws, I have to conclude that it is terribly wrong for the President to, in effect, take over the job of Congress and do what he wants.

Selective enforcement of the law amounts to no law. Hitler could have killed all the Jews by announcing that he would not prosecute anyone who murdered a Jew.

It is said that other presidents, including Reagan, did similar things, under cover of “prosecutorial discretion.” But that is no argument. Either these earlier actions were different, at least in degree, or they embody the same principle that Obama is now acting on–the principle that the President may make the laws. If they are different, it is irrelevant to cite them. If the earlier actions are the same as Obama’s, it means only that the earlier actions were also wrong.

I have also read that President Obama repeatedly said he could not and would not do what he suddenly has done.

If immigration laws are, as I hold, violations of individual rights, it is up to the courts, not the President, to determine that. The President is sworn in by taking an oath specified in the Constitution:

“I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States.”

The office of the President is to execute the laws. So this is an unparalleled power-grab by the President. It doesn’t matter that open immigration is a right and shouldn’t be illegal: it is not the President’s job to determine what laws are proper and improper. And the issue of the separation of powers–Legislative, Judicial, and Executive–is a more fundamental issue than immigration. What would leftists say, the Wall Street Journal asks, if a Republican President refused to enforce the capital gains tax?!

Law professor Stephen Lugomsky and others have attempted to defend Obama’s action as “prosecutorial discretion”: prosecutors may prioritize who they go after. But prioritization is not what Obama announced:

So we’re going to offer the following deal: If you’ve with been in America more than five years. If you have children who are American citizens or illegal residents. If you register, pass a criminal background check and you’re willing to pay your fair share of taxes, you’ll be able to apply to stay in this country temporarily without fear of deportation. You can come out of the shadows and get right with the law. That’s what this deal is.

That’s not prioritizing, that’s changing the law.

And in response to hecklers at his recent speech in Chicago, Obama admitted it: “I just took an action to change the law.”

Obama has unconstitutionally defied Congress. He took the action because Congress is against the change he wants.

As bitter a pill to swallow as the anti-immigration laws are, we must do so in this case and condemn in the strongest terms this Presidential power-grab.