Constitutional Conflicts, Other Legal Battles

Obama, the lawless one

Congress didn’t do much during the year, but it went on summer vacation anyway.

In the interim, President Barack Obama has announced that it will act unilaterally to mitigate the immigration crisis. The president’s opponents have called his intent to act on immigration “lawless.”

The thing is, nobody knows what Obama is planning to do. All that’s known is that he plans to act before the congressional recess is up.

Some analysts predict the president will expand the deferred-action program, which has allowed thousands of undocumented students to not have to worry about deportation and to obtain lawful employment. It’s unclear how large the expansion will be, or whether it will include DREAMers’ family members.

Other predictions point to Obama relaxing rules defining who counts as a “low-priority” immigrant, that is, those who are not a risk to public safety.  If the rules change, it’s possible that persons who have been convicted of minor offenses—unlike serious or violent ones—will not be considered “deportable” and will be allowed to stay.

No matter Obama’s executive action on immigration, his critics in the House and the Senate have prejudged his plans. “Obama is acting lawlessly.” Others sound a louder alarm: “Obama is violating the Constitution.”

But is that so?

A look at history and Obama’s background reveals things aren’t as egregious as Republicans make them sound, and that the president does not need the permission of Congress to promote measures that are within his faculties as enforcer-in-chief.

The Constitution grants the president, as executor of the laws, the last word on how to enforce them. If he feels like it, he may choose not to enforce them. That’s what’s known as “prosecutorial discretion.”

Police do the same thing all the time. The law prohibits jaywalking, but you don’t see the NYPD arresting the thousands who jaywalk daily. Or issuing summonses to everyone who crosses the street with a red light. Or stopping every car that goes over the speed limit.

Kenneth Thompson, the Brooklyn district attorney, announced in July that he would not prosecute certain low-level drug offenses. His statement supporting the move was classic prosecutorial discretion: “This new policy is a reasonable response to the thousands of low-level marijuana arrests that weigh down the criminal justice system, require significant resources that could be redirected to more serious crimes and take an unnecessary toll on offenders.”

Of course, no one is going around calling Thompson lawless. (Though some have expressed reservations from a public-policy standpoint.)

Similarly, there are thousands of laws on the books the government never enforces—the statutes are either too old or the enforcers lack the resources to go after all the law-breakers. So government chooses not to prosecute. And that discretion is entirely within the province of the law enforcer.

In Obama’s case, what wouldn’t be within his province as chief law enforcer would be to go beyond what the law allows, like granting permanent residence to undocumented immigrants or federal benefits such as Social Security. That would be a lawless act.

But deciding not to do something—like not deporting certain persons without lawful status or making exceptions in special cases—is perfectly constitutional. Other presidents have done it—in areas such as immigration, criminal prosecutions, tax law, and administrative law. It’s nothing new.

Congress can continue enjoying its vacation.

(A version of this article was published in Spanish in the print and online editions of Los Angeles’ La Opinión.)

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