[From article]
American constitutions generally precluded any executive acts suspending or dispensing with the law.” Law professors Robert Delahunty and John Yoo make similar points in a recent Texas Law Review article, noting that Pennsylvania’s James Wilson, the Take Care Clause’s original proponent, explained years after the Constitution’s ratification that the president has no authority “to make, or alter, or dispense with the laws.”
[. . .]
After years of controversy over his targeted nonenforcement of federal laws—from “waiving” inconvenient provisions of the Affordable Care Act to disregarding provisions of the Clean Air Act that would render his climate-change program unsustainable—the president announced that he was effectively waiving the federal immigration laws with respect to 5 million illegal immigrants. He justified his policy on the basis of scarce government resources—the administration cannot deport all 11 million illegal immigrants, the argument goes, so it should at least set policies that prioritize particular deportations over others.
[. . .]
where OLC concludes that the president’s policy does not, “under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match [his] policy preferences,” the president speaks to the contrary. “I just took an action to change the law,” he told an audience days after the OLC issued its analysis.
It is this unbridgeable gap between the president’s actions and the Justice Department’s rationalizations that reveals Obama’s failure to satisfy his constitutional obligation to “take care that the laws be faithfully executed.” Though a certain degree of statutory under-enforcement is tolerable (and often laudable) under our constitutional framework, the president is not “faithful” when his approach is fundamentally dishonest.
http://www.city-journal.org/2015/25_1_snd-presidential-oaths.html
ADAM WHITE
Unfaithful Executive
On presidential oaths and obligations
Winter 2015
[. . .]
After years of controversy over his targeted nonenforcement of federal laws—from “waiving” inconvenient provisions of the Affordable Care Act to disregarding provisions of the Clean Air Act that would render his climate-change program unsustainable—the president announced that he was effectively waiving the federal immigration laws with respect to 5 million illegal immigrants. He justified his policy on the basis of scarce government resources—the administration cannot deport all 11 million illegal immigrants, the argument goes, so it should at least set policies that prioritize particular deportations over others.
[. . .]
where OLC concludes that the president’s policy does not, “under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match [his] policy preferences,” the president speaks to the contrary. “I just took an action to change the law,” he told an audience days after the OLC issued its analysis.
It is this unbridgeable gap between the president’s actions and the Justice Department’s rationalizations that reveals Obama’s failure to satisfy his constitutional obligation to “take care that the laws be faithfully executed.” Though a certain degree of statutory under-enforcement is tolerable (and often laudable) under our constitutional framework, the president is not “faithful” when his approach is fundamentally dishonest.
http://www.city-journal.org/2015/25_1_snd-presidential-oaths.html
ADAM WHITE
Unfaithful Executive
On presidential oaths and obligations
Winter 2015
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