Tag Archives: immigration

Obama’s Immigration Enablers

By DAVID B. RIVKIN JR. And ELIZABETH PRICE FOLEY

A few hours before announcing his new immigration policy, President Obama received an opinion blessing its legality from the Office of Legal Counsel. Regrettably, the OLC’s made-to-order legal analysis is shockingly flawed in five major respects.

First, the OLC justified the policy as a prioritization of government’s “limited resources.” But the executive order does more than prioritize. It rewrites existing law. Illegal immigrants won’t be deported if they aren’t a threat to national security, public safety or border security. Beyond these three categories, deportation may be pursued only if it serves an “important federal interest.”

Under current law, by contrast, anyone entering the U.S. illegally is a “deportable alien” who “shall, upon the order of the Attorney General, be removed.” The president’s policy transforms an entire category of aliens deemed deportable into two different categories, whereby some are deportable and some aren’t. This is a shift in kind, not merely degree.

A president prioritizing resources would do what previous presidents have done: enforce the entirety of immigration law, while allowing prosecutors to make case-by-case determinations. By announcing a global policy of nonenforcement against certain categories, Mr. Obama condones unlawful behavior, weakening the law’s deterrent impact, and allows lawbreakers to remain without fear of deportation. As he puts it, “All we’re saying is we are not going to deport you.” These individuals are no longer deportable, although Congress has declared them so.

Second, the OLC incorrectly concludes that the president’s plan involves case-by-case scrutiny. The OLC admits “a general policy of nonenforcement that forecloses the exercise of case-by-case discretion poses ‘special risks’ that the agency has exceeded the bounds of its enforcement discretion.” It argues, however, that there are no “removable aliens whose removal may not be pursued under any circumstances.” And although the policy “limits the discretion of immigration officials . . . it does not eliminate that discretion entirely.”

It is absurd to assert that the theoretical possibility that a small percentage of the more than four million likely applicants may be rejected is meaningful “prosecutorial discretion.” This is illustrated by Mr. Obama’s 2012 Deferred Action for Childhood Arrivals policy. Of 521,815 applications considered on a “case-by-case” basis, only 3% have been rejected. With an approval rate of 97%, the president’s criteria are rubber-stamped. This is a categorical exemption from the law.

Third, even if Mr. Obama’s plan is accepted as case-by-case discretion, it creates a remedy—deferred deportation—for a category that Congress hasn’t allowed and the president lacks authority to create. The OLC memo lumps deferred deportation with other kinds of deportation relief, such as parole, temporary protected status and deferred enforced departure. But each of these has been specifically authorized by Congress, or—in the case of deferred enforced departure—is supported by the president’s foreign-affairs power.

While Congress has authorized deferred deportation for specific categories, lawmakers haven’t authorized it for those to whom President Obama wishes to extend it—the parents of U.S. citizens and lawful permanent residents. The OLC claims that this isn’t important because deferred deportation “has become a regular feature of the immigration removal system that has been acknowledged by both Congress and the Supreme Court.” It cites the 1999 Reno v. American-Arab Anti-Discrimination Committee case.

In that case, members of the Palestinian Liberation Front claimed the Immigration and Naturalization Service’s refusal to defer their deportation constituted discrimination. The court disagreed, ruling that a recently passed statute was “clearly designed to give some measure of protection to ‘no deferred action’ decisions” and deny adjudication of such discrimination claims. The ruling merely acknowledged that Congress didn’t want federal courts hearing discrimination lawsuits based on a failure to grant deferred action. It didn’t consider or endorse the legality of deferred deportation.

The OLC next claims that Congress has “acquiesced” to deferred deportation. It cites statutes authorizing deferred deportation for battered spouses of U.S. citizens, and instances where individuals entitled to visas—such as victims of human trafficking or college students affected by Hurricane Katrina—needed more time to obtain visas or fulfill the visa’s purpose. Congress’s authorization of deferred deportation for narrow categories doesn’t allow a president to create broad new categories, particularly since his deferred deportation creates entitlement to benefits such as work permits, and because the category of aliens created by President Obama’s policy weren’t entitled to stay.

Fourth, the OLC claims that past presidents have taken similar actions, yet it fundamentally misrepresents their legal basis. The primary example is George H.W. Bush ’s 1990 Family Fairness Policy (FFP), which affected an estimated 1.5 million children and spouses of those granted amnesty by the 1986 Immigration Reform and Control Act.

The FFP, however, was consonant with existing statutes. The FFP granted not deferred deportation, but “voluntary departure” for up to one year. Voluntary departure allows deportable individuals to voluntarily depart the country, on their own dime, in lieu of being forcibly removed. Their status as “deportable” individuals never changes.

The FFP was grounded in the then-existing voluntary-departure statute, which stated, “The Attorney General may, in his discretion, permit any alien under deportation proceedings . . . to depart voluntarily from the United States at his own expense in lieu of deportation.” The FFP didn’t contradict existing law or attempt to recategorize deportable aliens.

Fifth, the OLC ignores that the new Obama policy profoundly harms the states, which bear the costs of educating and providing health care to millions of illegal immigrants now allowed to remain. The policy also injures state sovereignty.

In Arizona v. U.S., the Supreme Court ruled in 2012 that federal immigration law pre-empts much of state power over immigration. But when a president unilaterally acts, it deprives states of their police power and representation in Congress, imposing changes without democratic deliberation. While federal immigration law can pre-empt state power, there can be no pre-emption when a president exceeds his constitutional authority by rewriting the law.

The OLC’s memo endorses a view of presidential power that has never been advanced by even the boldest presidential advocates. If this view holds, future presidents can unilaterally gut tax, environmental, labor or securities laws by enforcing only those portions with which they agree. This is a dangerous precedent that cannot be allowed to stand.

Source: http://online.wsj.com/articles/david-rivkin-and-elizabeth-price-foley-obamas-immigration-enablers-1416872973

Mr. Rivkin is a constitutional litigator and served in the Justice Department and White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Ms. Foley is a constitutional law professor at the Florida International University College of Law.

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Obama vs. Congress—and the Law

The President has taken a hatchet to welfare reform, the immigration laws, and ‘No Child Left Behind.’

(published in The Wall Street Journal, July 27, 2012)

By DAVID B. RIVKIN JR. AND LEE A. CASEY

On July 12, President Obama unilaterally gutted the Clinton administration’s signature achievement—welfare reform. The 1996 welfare-reform law, while passed with strong bipartisan support, has been the bane of progressives, who have never accepted its fundamental principle that those who can work must work. Over the last year, the Obama administration also took the hatchet to the immigration laws and to the Bush-era “No Child Left Behind” statute.

These actions have two things in common. First, they were announced with much fanfare and designed to appeal to the president’s liberal base. Second, and much worse, they were implemented by suspending enforcement or waiving applications of laws Mr. Obama does not like.

The president cannot write—or rewrite—the laws. The Constitution makes Congress the legislature, and the president cannot simply ignore its decisions.

The entire system of separation of powers—which is the heart of the Constitution’s “checks and balances” designed to limit governmental power and thereby protect individual liberty—depends upon each branch of the federal government fulfilling its assigned role and respecting that of the others. Unfortunately, Mr. Obama has now made clear that he won’t respect these basic constitutional limits on his power.

Last year, for example, the administration was displeased with Congress’s failure to enact the White House-supported Dream Act, which would have legalized numerous categories of young undocumented aliens. And so, in August 2011, the administration announced it would not deport illegal aliens who had only violated the immigration laws. Henceforth, only those who had committed criminal offenses, in addition to immigration ones, would be the subject of deportation proceedings.

Mr. Obama followed this with a White House announcement in June of this year that granted effective amnesty to undocumented aliens under age 30 who had come to the United States before the age of 16. This entire group will no longer be subject to deportation proceedings and may also qualify for renewable work permits. Thus the president implemented portions of legislation he could not get through Congress on his own signature and acted in ways blatantly at odds with the existing immigration laws, which provide for no such exemptions from deportation.

Earlier this year, in February, the administration gutted the strict student testing and monitoring requirements of the 2001 “No Child Left Behind” law. The law, which passed with strong bipartisan support, is meant to make schools more accountable for their pupils’ progress. But the testing and monitoring requirements are loathed by teachers unions across the nation—a key Democratic constituency for November. Unable to convince Congress to revise key provisions of the law, the president simply authorized “waivers” from many of these requirements—including one that states establish reading and math proficiency standards for all students by 2014. But “No Child Left Behind” does not provide for such waivers.

Most recently, the administration announced that it will waive the central tenet of the Clinton welfare-reform law—the requirements that recipients work or prepare (through approved education or training) to do so. Although certain aspects of the Personal Responsibility and Work Opportunity Act are subject to waiver, the federal work requirements are not among them.

The pattern of lawlessness here would have outraged the Constitution’s Framers. It should outrage all of us—including and especially members of Congress on both sides of the party divide.

Congress makes the laws and they must be enforced. For the Constitution’s Framers, this principle was bedrock—not only the ultimate achievement of our own revolution, but of England’s Glorious Revolution a century before. King James II was deposed in 1688, in no small part, because he claimed and exercised the power to “suspend” parliament’s laws.

Congress does not have to reach back to the 17th century for a precedent. Like President Obama, President Richard M. Nixon also refused to implement federal statutes when he believed Congress was wrong. Nixon did so by refusing to spend (“impounding”) money authorized and appropriated by Congress. It responded with the Congressional Budget and Impoundment Control Act in 1974, followed by a Supreme Court decision (Train v. City of New York, 1975) overturning one of the president’s impoundments, effectively ending the practice.

The Constitution gives the president many tools, some legal and some political, to use in his daily cut and thrust with Congress over national policy and priorities. But it does not permit him to ignore the laws Congress has enacted, and to make his own rules simply because he thinks the desired policy result is the right thing to do. A president who does not understand this does not understand the constitutional requirement that he “take care that the laws be faithfully executed,” or his inaugural oath to “faithfully execute the Office of President of the United States.”

Messrs. Rivkin and Casey served in the White House and U.S. Department of Justice during the Reagan and George H.W. Bush administrations.

A version of this article appeared July 27, 2012, on page A13 in the U.S. edition of The Wall Street Journal, with the headline: Obama vs. Congress—and the Law.

Can Obama’s imperial power grabs be stopped? Rivkin tells Lou Dobbs

Constitutional Attorney David Rivkin to debunk the president’s latest controversial move on immigration on Fox Business Network

Published on 9 January 2012

by Brent Baldwin

(OfficialWire)

WASHINGTON, D.C. (USA)
OfficialWire PR News Bureau

David Rivkin, the lawyer who designed and argued the successful multi-state challenge to ObamaCare, is turning his guns on the latest and possibly the most egregious unconstitutional power grab by the Obama administration. Watch Rivkin in action on Lou Dobbs.

David Rivkin will be interviewed on Lou Dobbs Tonight on the Fox Business Network Friday, January 13 (7 to 8 p.m. EST) regarding a recent article he co-authored for The Washington Postabout President Barack Obama’s claims that he can preempt state law whenever immigration policy “might irritate a foreign government.”

The case stems from the Arizona immigration policy of penalizing illegal immigrants, and, according to Rivkin, it boils down to an unprecedented expansion of presidential power, among others.

“This is a stunning and audacious power grab, far more expansive than the legal theories that prompted critics of President George W. Bush to argue that he established an ‘imperial presidency.’ It simply cannot be that, despite all the Constitution’s limitations on federal power and executive action, the president’s powers become absolute whenever another nation complains.”

The Supreme Court has granted swift review of this issue, and Rivkin will explain on tonight’s show what he believes about the repudiation of Obama’s latest power grab will be quickly forthcoming.

Source: http://www.officialwire.com/main.php?action=posted_news&rid=311146

Obama’s imperial power grab on immigration

(published in The Washington Post, December 27, 2011)

By David B. Rivkin Jr. and Joe Jacquot

David Rivkin served in the Justice Department during the Reagan and George H.W. Bush administrations. He represented the 26 states in their challenge to the 2010 Affordable Care Act before the trial and appellate courts. Joe Jacquot is a former deputy attorney general of Florida and a former chief counsel of the Senate Judiciary Committee’s subcommittee on immigration.

The Obama administration has taken federal-state relations to a new low in its quest for an unprecedented expansion of presidential power. In response to Arizona’s efforts to identify and arrest undocumented immigrants, the president claims that he can preempt state law whenever its enforcement might irritate a foreign government. This unconstitutional power grab cannot stand.

While the challenge by 26 states to the 2010 Affordable Care Act seeks limits on Congress’s powers, the Arizona law defends the fundamental authority of states to act in contravention of the president’s preferences. There is genuine controversy over the Arizona immigration policy of penalizing illegal immigrants , designed to drive down their numbers and reduce the burdens on the state budgets and institutions, but the case the Supreme Court recently agreed to hear poses broader legal questions that go to our Constitution’s most fundamental principles, executive power and state sovereignty.

Under the Constitution, some powers are exclusive to the federal government or the states, while others are shared. By limiting the federal government’s reach to authorities found in specific, enumerated grants of power, the Constitution reserves broad authority for individual states. States retain traditional “police power” to legislate on issues of public safety and welfare.

Arizona relied on its police power in passing the immigration-related law the Obama administration has challenged. That law’s most controversial provisions make Arizona state and local law enforcement responsible for investigating possible violations of federal immigration law. If an officer has reasonable suspicion that a person encountered during a police stop or detention is in this country illegally, the officer must check the person’s immigration status. If immigration authorities confirm that the person is illegal, the officer must arrest him or her.

No one disagrees that Congress could preempt state efforts to enforce immigration law, under its constitutional power to “establish a uniform rule of naturalization.” But Congress actually rejected that approach. Instead in the 1996 statute, it afforded the states broad flexibility to address immigration-related matters consistent with federal statutory requirements. The Supreme Court held as much last year when it approved another Arizona law that revokes the permits of businesses that hire illegal workers.

Nevertheless, the Obama administration claims that federal power preempts Arizona’s law in two ways. First, it has argued, in court filings intended to strike down the Arizona law under the Constitution’s “supremacy clause,” that federal law prevails when state law conflicts with it. The administration argues that, as Congress has authorized the executive branch to identify and detain illegal immigrants, the president’s decision not to enforce the law creates a conflict.

But no precedent suggests that the president’s refusal to carry out Congress’s wishes, as expressed in law, somehow prevents a state from doing so or renders its actions contrary to congressional intent, which is the appropriate standard for preemption. And that argument is especially ludicrous in this instance, where Congress specifically required federal officials to inform state and local law enforcement of a person’s immigration status when requested. In this way, federal law actually supports and facilitates Arizona’s enforcement approach. Congress’s intentions could hardly be clearer.

The administration’s fallback argument is simply that the president has unilateral power under the Constitution to nullify Arizona’s law respecting immigration. Mexico, the administration explains, has lodged complaints regarding Arizona’s law, and this implicates the president’s power over foreign affairs, which in turn trumps Arizona’s immigration-related actions.

This is a stunning and audacious power grab, far more expansive than the legal theories that prompted critics of President George W. Bush to argue that he established an “imperial presidency.” It simply cannot be that, despite all the Constitution’s limitations on federal power and executive action, the president’s powers become absolute whenever another nation complains.

Indeed, the Supreme Court recently rejected even a more limited version of that argument advanced by the Bush administration. In Medellin v. Texas , the court rejected Bush’s attempt to enforce U.S. treaty obligations by blocking Texas’s execution of a Mexican national who had not been given his consular-notification rights. Yes, the court explained, the president is well-placed to resolve sensitive foreign policy decisions, but that status does not confer “unilateral authority to create domestic law” or override state law.

Nearly 60 years ago, in the Youngstown case that famously reversed President Harry S. Truman’s efforts to seize the nation’s steel mills during the Korean War, Justice Robert Jackson explained that “when the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.” When those measures are also incompatible with the basic precepts of federalism, his power is nonexistent. The fact that the Supreme Court granted swift review of this case suggests that it will repudiate the Obama administration’s imperial power grab.

Source: http://www.washingtonpost.com/opinions/obamas-imperial-power-grab-on-immigration/2011/12/27/gIQAaI6GLP_story.html

Written statement regarding the U.S. Immigration and Customs Enforcement: Priorities and the Rule of Law

Written Statement

Oversight Hearing on “U.S. Immigration and Customs Enforcement: Priorities and the Rule of Law”
Before the Committee on the Judiciary, United States House of Representatives

David B. Rivkin, Jr., Partner Baker Hostetler LLP
1050 Connecticut Avenue, N.W. Suite 1100 Washington, D.C. 20036

October 12, 2011
Rayburn House Office Building, Room 2141, 3:30 p.m.

Introduction

My name is David B. Rivkin, Jr. I am an attorney specializing in constitutional law at the firm of Baker Hostetler LLP and co-chair the firm’s Appellate and Major Motions practice.

Over the years, I have served in a number of legal and policymaking capacities in the federal government, including in the White House Counsel’s Office, the Office of the Vice President, and the Departments of Justice and Energy.

I have a particularly keen interest in the structural separation of powers and have been involved professionally in a number of cases, both in and out of government, that have implicated these important issues. As the most recent example of my engagement with federalism matters, my colleagues at Baker Hostetler and I serve as outside counsel to the 26 States that have challenged the constitutionality of the Patient Protection and Affordable Care Act of 2010. I am testifying today on my own behalf and do not speak either on behalf of my law firm or any of our clients.

Discussion

Immigration policy has been a much-debated issue, both at the national and state level, for a number of years now. The George W. Bush Administration tried, but failed, to enact a comprehensive immigration reform bill. The Obama Administration, while talking much about the need for reform, has not mounted a serious legislative effort in this area. Unfortunately, it has chosen a different path, whereby the President, solely on his own authority, sought to revise the existing immigration laws. In our constitutional system, however, it is Congress that has plenary constitutional authority to establish U.S. immigration policy and fundamental reform requires legislative action. The President cannot revamp immigration laws on his own, and his Administration’s recent effort to do so, by announcing that it will seek deportation only for undocumented aliens who have committed non-immigration crimes in the United States, violates the separation of powers and is unconstitutional.

Of course, no President can hope to expel each and every undocumented alien now in the United States – perhaps upwards of 11 million individuals. Human and financial resources to identify, apprehend, process, and promptly deport millions of illegal aliens have been lacking for years and, arguably, so has been the political will to do so. In this environment, immigration enforcement authorities, under both Democratic and Republican administrations, have performed as best they could, given the available resources. Still, millions of illegal aliens have been deported over the years and, while many of them were persons convicted of serious criminal offenses, most deportees were not in that category.

But Obama’s new policy, announced over the last several months, is fundamentally different from the admittedly imperfect immigration enforcement records of previous Presidents. The Administration has stated that, henceforth, deportation efforts will be focused solely on aliens with criminal records and no enforcement resources will be expended on other types of cases. Undocumented individuals who have avoided apprehension at the border and not been convicted of a serious offense since arriving to the United States will no longer face the prospect of deportation, the most basic means of immigration enforcement.

Far from merely prioritizing the use of limited resources, the Administration’s policy effectively rewrites the law. It means that the vast majority of undocumented aliens need no longer fear any immigration law enforcement. This applies even to those illegal aliens who are now in deportation proceedings. Limiting the possibility of deportation in this manner eliminates entirely any deterrent effect the immigration laws have, and also states plainly that those laws can be ignored with impunity. The President has, in effect, suspended operation of those laws with respect to a very large and identifiable class of offenders. This clearly exceeds his constitutional authority.

Federal agencies can, of course, establish enforcement priorities because Congress rarely appropriates adequate monies to allow perfect enforcement of any federal scheme, which may not be possible in any case. Law enforcement agencies like Immigration and Customs Enforcement (“ICE”) therefore properly exercise “prosecutorial discretion” in deciding which offenses to investigate and prosecute. That discretion ultimately resides in the President and allows him to establish priorities – properly informed by his own policy preferences – on at least two levels. First, a President can determine to devote more resources to a particular problem – human trafficking or white collar crime, for example – with the inevitable result that other federal statutes or areas of concern – organized crime, say – will be less vigorously pursued and enforced. This is entirely lawful and appropriate. Presidents are elected for the very purpose of establishing such priorities.

Second, law enforcement officials must make determinations in particular cases whether and how to direct their efforts. For example, under the manual governing United States Attorneys, federal prosecutors must consider whether there is a sufficient federal interest before pursuing a particular case. This involves considerations such as the nature and seriousness of the offense, the potential deterrent effect on others, the defendant’s previous record, alternatives to criminal prosecution, overall likelihood of success, and established law enforcement priorities. This enforcement discretion is also fully supported by the President’s constitutional authority.

That authority, however, is not boundless. While the President can, for example, legitimately decide that, in the post-9/11 environment, most of the FBI’s resources should bededicated to the investigation and prosecution of terrorism cases, he cannot decree that no enforcement assets whatsoever would be allocated to securities fraud or counterfeiting cases. Because the Executive Branch has the exclusive license to enforce federal criminal laws in our constitutional system, this would effectively decriminalize securities fraud and counterfeiting, derogating from the federal statutes that prescribed such activities.

In this regard, the Constitution provides that the President “shall take care that the laws be faithfully executed,” and the Framers did not include this imperative language by accident. Exactly one hundred years before the Constitution came into effect in 1788, Britain’s king James II was deposed in no small part because he claimed the legal right to suspend generally, or dispense with in individual cases, laws enacted by Parliament.

King James was a Roman Catholic and hoped to benefit his co-religionists by issuing a “declaration of indulgence” suspending operation of the religious penal laws Parliament hadenacted against Roman Catholics and non-Anglican Protestants. James pressed the point in the face of near universal opposition throughout the English political nation, and he was promptly turned out in favor of his Protestant daughter and son-in-law, William and Mary.

Parliament’s anger was not merely a product of religious bigotry. Admitting of a suspending or dispensing power would fatally warp any balance between executive and legislative authority. A legislature has no power to speak of if the Executive, whether king or President, can simply decide not to enforce the laws that it has enacted. Thus, both the suspending and dispensing powers were declared illegal in the English Bill of Rights. The Framers knew this history well and gave the President no choice but to execute laws passed by Congress. As the Supreme Court stated in 1838, in a case called Kendall v. United States, the power to dispense with laws enacted by Congress “has no countenance for its support in any part of the constitution.”

President Obama has effectively announced his intent to suspend or dispense with the immigration law. This is a suspension as broad as any attempted by the British monarchy, and it is equally illegal. The President is entitled to establish enforcement priorities, but the ultimate goal must always be implementation of the law enacted by Congress. If the President disagrees with that law, he must convince Congress to change it.

Obama’s illegal move on immigration

(from The Washington Post, September 2, 2011)

by David B. Rivkin Jr. and Lee A. Casey

Only Congress has constitutional authority to establish U.S. immigration policy, and fundamental reform requires legislative action. Thus the administration’s recent announcement that deportation will be sought only for undocumented immigrants who have committed crimes in the United States violates the separation of powers and is unconstitutional.

No president, of course, can hope to expel every undocumented person in the United States — they number perhaps upward of 11 million people. Human and financial resources to identify, apprehend, process and promptly deport millions have been lacking for years as has, arguably, the political will to do so. In this environment, immigration enforcement authorities, under administrations of both parties, have performed as best they could given their resources. Still, millions have been deported over the years. And while many had been convicted of serious criminal offenses, most deportees have not been in that category.

The policy that Obama unveiled last month differs fundamentally from the spotty immigration enforcement records of previous presidents. The administration indicated that, henceforth, deportation will be focused solely on illegal immigrants who have criminal records and that no enforcement resources will be expended on those who do not pose a threat to public safety. The effect is that undocumented individuals who have avoided apprehension at the border and not been convicted of a serious offense since arriving to the United States will no longer face the prospect of deportation, the most basic means of immigration enforcement.

This goes far beyond merely prioritizing the use of limited immigration enforcement resources. And it exceeds the president’s constitutional authority by, in effect, suspending operation of the immigration laws with respect to a very large and identifiable class of offenders.

Federal agencies establish enforcement priorities because Congress rarely votes adequate monies to fully implement any federal program. Law enforcement agencies such as Immigration and Customs Enforcement properly exercise prosecutorial discretion in deciding which offenses to investigate and prosecute. That discretion ultimately resides in the president. It allows him to establish priorities — properly informed by his policy preferences — on at least two levels.

First, a president can decide to devote more resources to a particular problem — human trafficking or white-collar crime, for example — with the result that other laws or areas of concern (say, organized crime) will be less vigorously pursued and enforced. This is entirely lawful and appropriate. Presidents are elected in part to establish such priorities.

Second, law enforcement officials must make determinations whether and how to direct their efforts in individual cases. Under the manual governing U.S. attorneys, for example, federal prosecutors must consider whether there is a sufficient federal interest before pursuing a case. This involves questions such as the nature and seriousness of an offense, potential deterrent effect on others, the defendant’s record, alternatives to criminal prosecution, likelihood of success and established law enforcement priorities.

This discretion is fully supported by the president’s constitutional authority. But that authority is not boundless. While the president can legitimately decide that, say, most FBI resources should be dedicated to the investigation and prosecution of terrorism cases, he cannot decree that no enforcement resources whatsoever should be allocated to securities fraud or counterfeiting cases. Since in our constitutional system the executive branch has exclusive license to enforce federal criminal laws, this would effectively decriminalize securities fraud and counterfeiting, vitiating the federal statutes that proscribed such activities.

In this regard, the Constitution provides that the president “shall take care that the laws be faithfully executed.” A century before the Constitution took effect, Britain’s King James II was deposed in no small part because he claimed the right to generally suspend laws enacted by Parliament and to dispense with law in individual cases.

James hoped to benefit his fellow Roman Catholics by issuing a “declaration of indulgence,” suspending operation of the religious penal laws Parliament had enacted against Roman Catholics and non-Anglican Protestants. The opposition in Britain was not merely due to religious bigotry. Acknowledging the power to suspend or dispense with laws, even when used to grant religious tolerance, would fatally warp any balance between executive and legislative authority. A legislature has no power to speak of if the executive can simply decide not to enforce its law. Thus, the suspending and dispensing powers were declared illegal in the English Bill of Rights. Knowing this history, the Framers gave the president no choice but to execute laws passed by Congress. As the Supreme Court stated in the 1838 case Kendall v. United States, the power to dispense with laws enacted by Congress “has no countenance for its support in any part of the constitution.”

Obama has not declared his intent to dispense with immigration law, and the point at which permissible executive enforcement discretion becomes suspension of statutory requirements often is one of degree. In this case, however, there is little question that the line has been crossed. The president is entitled to establish enforcement priorities, but the ultimate goal must always be implementation of the law as enacted by Congress. If the president disagrees with that law, he must persuade Congress to change it.

The writers are partners in the Washington office of Baker & Hostetler; they served in the Justice Department under presidents Ronald Reagan and George H.W. Bush.

Source: http://www.washingtonpost.com/opinions/obamas-illegal-move-on-immigration/2011/09/01/gIQATKQexJ_story.html