Obama is relying on federal agencies to ignore, or at least not defend, some laws. Obama's policy strategy: Ignore laws

President Barack Obama returned Friday to a trusted tactic — satisfying his political allies by not doing something.

Conservatives were angry when Janet Napolitano announced the administration would stop deporting certain undocumented immigrants, but they should have seen it coming. On issue after issue — gay rights, drug enforcement, Internet gambling, school achievement standards — the administration has chosen to achieve its goals by a method best described as passive-aggressive.


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Rather than pushing new laws through a divided Congress to enact his agenda, Obama is relying on federal agencies to ignore, or at least not defend, laws that some of his important supporters — like Hispanic voters and the gay community — don’t like.

“If the president says we’re not going to enforce the law, there’s really nothing anyone can do about it,” University of Pennsylvania constitutional law professor Kermit Roosevelt said. “It’s clearly a political calculation.”

A White House official said the strategy is the result of a stalemate in Washington.

“We work to achieve our policy goals in the most effective and appropriate way possible,” the official said. “Often times, Congress has blocked efforts (ie [No Child Left Behind] and DREAM) and we look to pursue other appropriate means of achieving our policy goals. Sometimes this makes for less-than-ideal policy situations — such as the action we took on immigration — but the president isn’t going to be stonewalled by politics, he will pursue whatever means available to do business on behalf of American people.”

For Obama — and future presidents should Washington remain polarized to the point of perpetual inaction — it may be the only way to fulfill a range of campaign promises.

As of Friday, the federal government won’t deport undocumented immigrants under age 30 who came to the United States as children. It is a temporary, de facto implementation of a part of the stalled DREAM Act.

The result: a loud message to Hispanic voters to remember Obama in November.

On gay rights, too, the administration has asked agencies to do less. In February 2011, the Justice Department announced it would not defend DOMA against court challenges — an unusual step for the agency, which typically defends legal challenges to laws on the books. But the 1996 law, which bars the government from recognizing same-sex marriage, appears headed to the U.S. Supreme Court via either the 9th Circuit or 2nd Circuit Court of Appeals.

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In August, Obama’s DHS announced it would no longer deport the noncitizen spouses of gay Americans — a direct contradiction to DOMA as well.

The tactic has its start in the earliest days of the administration. In October 2009, the Department of Justice announced it would not prosecute medical marijuana users or suppliers in states where it’s legal, despite the state laws contradicting federal law. Federal law generally trumps state law in such matters.

Last September, the DOJ also announced a change of legal interpretation that effectively legalized Internet gambling. Two statutes seem to ban it – the Wire Act of 1961, which bars betting across state lines using the telecommunications devices, and the 2006 Unlawful Internet Gambling Enforcement Act, which bans American banks from processing payments to online casinos.

On education, too, Obama has made policy by not enforcing the law. By fiat, Secretary of Education Arne Duncan granted waivers to 10 states, freeing them from the strict requirements of the 2002 No Child Left Behind Act. In doing so, the president removed the mechanism that would force certain school standards to be improved.

“The president is using executive power to do things Congress has refused to do, and that does fit a disturbing pattern of expansion of executive power under President Obama,” said Jonathan Turley, a constitutional law scholar at George Washington University Law School, known for his support of progressive causes as well as his ire at Obama for not prosecuting Bush officials in connection with alleged torture of terror suspects.

“In many ways, President Obama has fulfilled the dream of an imperial presidency that Richard Nixon strived for. On everything from [DOMA] to the gaming laws, this is a president who is now functioning as a super legislator. He is effectively negating parts of the criminal code because he disagrees with them. That does go beyond the pale.”

That Nixon analogy may be apt, said John Eastman, a constitutional law professor known for his support of conservative causes at Chapman University School of Law in Orange, Calif. He cited Nixon’s abuse of the traditional presidential power of not spending, or impounding, allocated funds as an earlier example of a president opting not to carry out the will of Congress.

Yet other scholars cited a more recent example: President George W. Bush’s signing statements. The Republican came under fire from Democrats for his frequent decision to attach statements to bills he signed that indicated he found various provisions unconstitutional and, thus, would not enforce or follow them.

“There’s a difference between refusing to enforce a statute (as Obama is doing) and refusing to recognize a statute that binds the executive,” Roosevelt said. “The latter is what the Bush administration used to do. When Bush issued signing statements that he would construe laws so as not to infringe on his commander in chief power, he was saying that he reserved the right to disregard them if he thought it was necessary to protect the country, since that’s what the secret memos said the commander in chief power required. … I view that as more extreme.”

Roosevelt, like Eastman and Turley, worries that the Obama approach will give a future president the license “to decide we’re not going to prosecute insider trading or enforce EPA regulations. They could do that.”

And while giddy liberals on Friday marveled at Obama’s brazen craftiness, legal experts say supporters might feel a lot differently if the tactic becomes an enduring precedent.

“Say a Republican were to follow this strategy after regaining the White House in January of 2013 and the Supreme Court upholds the health care bill, and Romney can’t repeal it because the Democrats in the Senate filibuster it, he could basically repeal it through non-enforcement,” said Eastman.

They theoretically could but won’t, said former Obama legal adviser Laurence Tribe, a Harvard Law School constitutional professor and prominent liberal scholar.

“It’s always possible to conjure hypotheticals that test the outer boundaries of the broad principle that the president is generally obligated to enforce laws duly enacted by Congress but has a paramount duty to obey the Constitution,” Tribe wrote POLITICO in an email. “Obviously, the rule of law and the importance of orderly and stable governance in a system that relies principally on the judicial branch to ‘say what the law is’ precludes promiscuous presidential exercise of the prerogative of non-compliance. Yet it is also surely true that presidents cannot blindly follow congressional directives unless and until a court tells them to stop. What if a Congress were to tell the president to shoot all self-proclaimed Mormons on sight, the way the governor of Missouri once did in the 19th century? Surely no president with a constitutional conscience could comply with such a directive.”

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