Doug Kendall: Obama's Dream and the Right's Crocodile Tears

Is there any limit to the Right's hypocrisy about the Constitution? Do folks like Marco Rubio, Michele Bachmann, war-on-terror architect John Yoo, and columnist Charles Krauthammer really believe the Constitution means one thing when a Republican is in the White House, and something entirely different when the President is a Democrat?

That is the only conclusion that can be drawn from the incessant and insufferable howling from conservatives that President Obama's decision to exercise prosecutorial discretion to allow studious and law-abiding young people brought to this country by their parents to remain is somehow a threat to our constitutional system of government.

First, a short historical recap. During successive Republican presidencies, conservatives have made extremely aggressive, and in some cases unsustainable, assertions about the unfettered powers of the President to enforce the law and control the Executive Branch. This started in the Reagan Administration, where young conservatives in the Justice Department and White House Counsel's office (notably including John Roberts and Samuel Alito) fashioned something known as the "unitary executive theory" as a way of trying to strike out against independent agencies and special counsels that were not fully within the power and control of the President. As a Congressional Research Service (CRS) report from 1987 put it, "[i]n support of a variety of actions since 1981 designed to ensure ultimate presidential control of decisionmaking in all executive branch agencies, the Reagan administration has articulated a constitutional based theory of a unitary executive."

The Supreme Court decisively rejected this theory in 1988 with its 7-1 opinion in Morrison v. Olson, written by Chief Justice William Rehnquist. The Reagan Administration's unitary executive argument drew support only in a lonely dissent by Justice Antonin Scalia, but it lived on in conservative circles and was resurrected in the George W. Bush Administration in the foreign policy context. Particularly in an Office of Legal Counsel memorandum written by John Yoo authorizing warrantless wiretapping, President Bush asserted inherent powers to ignore federal statutes and even constitutional prohibitions such as the Fourth Amendment's ban on unreasonable searches and seizures when necessary to conduct the worldwide war on terror.

Compared to these truly aggressive assertions of executive authority, President Obama's new immigration policy is presidential child's play. More precisely, President Obama has done what Presidents can and should do in honoring their Article II obligation to "take care that the laws are faithfully enforced." At the core of executive authority is prosecutorial discretion, which allows the Executive Branch latitude in determining how to allocate its resources in enforcing the law. As Justice Scalia has said in an immigration case, "prosecutorial discretion" is the "special province of the Executive."

This is particularly true in the immigration context, because Congress, in the Immigration and Naturalization Act, made it clear that the enforcement of immigration laws is vested with the Executive Branch. Again, in the words of the Supreme Court, "Congress made a deliberate choice to delegate to the Executive Branch, and specifically to the Attorney General, the authority to allow deportable aliens to remain in this country in certain specified circumstances." Meanwhile, Presidents of both political parties have been using prosecutorial discretion to allow deferred actions [pdf] on deportable individuals for decades, and President Obama's new policy [pdf] still must be applied by federal officials on a case-by-case basis with no guarantees.

As Ilya Somin, a respected conservative scholar has explained, President Obama's decision not to deport certain studious and law-abiding youth brought here by their parents is akin to the decision of federal drug officials not to pursue college students who smoke pot in their dorms, and constitutional for the same basic reason. The President cannot refuse to enforce a law passed by Congress. But federal laws governing many subjects, including guns, drugs, taxes and immigration, all sweep a large number of Americans into their broad nets, and it is the responsibility, ultimately of the President, to decide who to prosecute and why.

As President Obama said, "this is not amnesty, this is not immunity. This is not a path to citizenship. It's not a permanent fix. This is a temporary stopgap measure that lets us focus our resources wisely while giving a degree of relief and hope to talented, driven, patriotic young people." Those who call this humane and lawful action unconstitutional know very little about the U.S. Constitution and nothing about what makes America great.

Cross-posted on Text & History.

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