Friday, November 21, 2014

Obama, immigration, and the rule of law

Obama, immigration, and the rule of law [updated with additional material on precedents for Obama's action] - Washington Post - Ilya Somin, Volokh Conspiracy:

November 20, 2014 - "Opponents of President Obama’s recently announced plan to defer the deportation of up to 5 million undocumented immigrants argue that it undermines the rule of law. After all, they contend, the president is required to enforce federal law as written, not pick and choose which violators to go after and which to exempt.

"But, in reality, all modern presidents inevitably make policy choices about which violations of federal law to prosecute. Obama’s decision to defer deportation is in line with those of past presidents, and well within the scope of his authority.

"To the extent that the rule of law is in jeopardy here, it is because the scope of federal law has grown so vast that no administration can target more than a small percentage of violations, thereby unavoidably giving the president broad discretion. Moreover, at least under the original meaning of the Constitution, the legality of the immigration laws that Obama has chosen not to enforce in some cases is itself suspect.

"Because of the enormous scope [of] federal criminal law, presidents routinely exercise extraordinarily broad discretion in deciding which violations to prosecute. Far more violators are systematically ignored than punished. To take just one of many examples, for decades federal law enforcement officials have almost never prosecuted the possession and use of marijuana on college campuses, even though such possession is clearly forbidden by the Controlled Substances Act. By doing so, they have let many millions of federal criminals of the hook, including the last three presidents of the United States – far more than are exempted from deportation by Obama’s policy.

"Article II of the Constitution states that the president must 'take Care that the Laws be faithfully executed.' But that does not mean that the president has an absolute duty to prosecute all violations of federal law, or that he cannot choose which ones to pursue based on policy considerations. If it did, virtually every president in the last century or more would be in violation."

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