Opinion Barack Obama, American Caudillo

Rich Lowry is editor of National Review.

To think that President Obama has taken the oath of office four times (through accidents of circumstance, twice each time he was elected). Taking the oath must have become such old hat that he stopped paying attention.

The president is now on the verge, if the reporting is correct, of issuing an executive amnesty for illegal immigrants based on an astonishingly blatant contempt for the constitutional order that he is sworn to uphold. Where does Abraham Lincoln go to get his Bible back?


The last 400 years of Anglo-American political history can be read as a successful effort to establish and maintain a system tethering the executive to the law. What President Obama is contemplating will undermine that achievement, both through his own lawlessness and the precedent he will create for subsequent presidents to operate by extra-legal fiat.

There are many opponents of the president's executive amnesty, but few as eloquent as the president himself over the years. It doesn't take a former constitutional law professor to know that Congress writes the law and the president executes it, even if he finds it personally distasteful.

This is basic. The president, slightly condescendingly, said at a Univision townhall at Bell Multicultural High School in Washington, D.C. in 2011 that everyone was there studying hard "so you know that we've got three branches of government. Congress passes the law. The executive branch's job is to enforce and implement those laws. And then the judiciary has to interpret the laws."

Thank you for the civics lesson, Mr. President. He has gone back to the drawing board since then. His new theory is that the president huffily demands that laws pass and if Congress refuses, he can create a new legal dispensation to his liking.

President Obama insisted the other day that his previous ringing statements about the separation of powers were only in response to questions about whether he could impose comprehensive immigration reform on his own. This is so demonstrably false, you wonder why he even bothered. As Glenn Kessler of the Washington Post demonstrated, the president was repeatedly asked about exactly the sort of action he is now about to undertake.

The president and his supporters pretend that the Immigration and Nationality Act contains a gigantic asterisk that says, notwithstanding the elaborate legal infrastructure set out in the law and the distinctions among different categories of immigrants, the president can do whatever he wants.

No Congress would ever write the law this way. And even if it did, it wouldn't pass constitutional muster.

"The case law," according to David Rivkin of the law firm Baker Hostetler, "clearly recognizes that delegations of any type of legislative authority to the president must contain some limiting principles; they can never be open-ended. To do otherwise, would unconstitutionally transfer core legislative powers to the president."

The president's defenders rely on the notion of prosecutorial discretion, the existence of which is uncontroversial. The executive doesn’t have the resources to hunt down and prosecute every violator of our laws, and therefore has to establish enforcement priorities.

The Congressional Research Service did a report on prosecutorial discretion and immigration that, for the most part, emphasizes its piddling reach. It says, for instance, that immigration officers may use discretion to decide whom to stop, question, and arrest; whether to issue or cancel a Notice to Appear; whether to settle or dismiss a proceeding; and so on.

No one heretofore has thought this leeway could be used by a president as warrant to eviscerate an entire statutory scheme.

Again, if the reporting is accurate, the administration will announce a class of people numbering in the millions that can get work permits, Social Security numbers, and legal identification, at clear variance with the laws passed by Congress.

This isn’t prosecutorial discretion—making enforcement decisions based on limited resources—it is affirmatively expending resources not appropriated by Congress for this purpose to administer a new system.

Under the Obama precedent, future presidents can use the pretense of prosecutorial discretion to dispense with swaths of the federal code and unilaterally come up with alternatives.

Can’t prosecute all pot dealers? Ignore the drug laws. Can’t find every tax scofflaw in the country? Re-write the tax code. The only limits will be the legal imagination and brazenness of the White House at any given moment.

Prior presidents have, in keeping with the law, provided temporary relief to foreign nationals whose native countries have been torn by civil strife or natural disasters. George H. W. Bush gave safe harbor to Chinese students after Tiananmen Square in 1990. Bill Clinton did the same for Central Americans here after hurricanes hit the region in 1998. The numbers involved were typically in the hundreds or thousands.

All this makes for a sound basis in precedent and the law for President Obama’s decision to give Syrians safe harbor in 2012, as their country descended into hellish chaos. It doesn't come close to justifying his impending executive amnesty.

The gotcha example of George H.W. Bush granting amnesty to some spouses and children of recently legalized immigrants in 1990 isn’t apt either, since the scale was much smaller (only about 140,000 people took advantage of it) and Congress voted to codify it within months.

No matter how much the president’s defenders stretch for a legal justification and for a precedent, the conclusion is unavoidable that no one has done this before. President Obama is said to want to build his legacy, and he will—as a man who is shamefully careless of his oaths and constitutional obligations.