John Yoo — yes, the man who said the president has the unilateral authority to order a child’s testicles crushed in order to extract information from their father — is mad as hell about Obama’s new immigration order, and he’s not gonna take it anymore.
President Obama’s claim that he can refuse to deport 800,000 aliens here in the country illegally illustrates the unprecedented stretching of the Constitution and the rule of law. He is laying claim to presidential power that goes even beyond that claimed by the Bush administration, in which I served. There is a world of difference in refusing to enforce laws that violate the Constitution (Bush) and refusing to enforce laws because of disagreements over policy (Obama).
Under Article II, Section 3 of the Constitution, the president has the duty to “take Care that the Laws be faithfully executed.” This provision was included to make sure that the president could not simply choose, as the British King had, to cancel legislation simply because he disagreed with it. President Obama cannot refuse to carry out a congressional statute simply because he thinks it advances the wrong policy. To do so violates the very core of his constitutional duties.
They simply don’t make irony meters strong enough to withstand that kind of blow. The reality, of course, is quite the opposite. The executive branch has always had the authority to apply discretion in making determinations on immigration, including considering how long someone has been here. Media Matters cites a 2011 report from Citizens and Immigration Services Ombudsman January Contreras indicating that such discretion has been used for decades by Republican and Democratic presidents:
For decades the U.S. Immigration and Naturalization Service (INS), followed by the Department of Homeland Security (DHS), has used deferred action to provide limited relief to foreign nationals who do not qualify for other immigration benefits that are typically available to individuals in exigent circumstances. Upon creation of the DHS in 2003, the power to grant deferred action was formally delegated to U.S. Citizenship and Immigration Services (USCIS), as well as U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP).
So let’s tally it up. According to John Yoo, the president has the unquestioned authority to do virtually anything he wants as long as it justifies it as necessary for the war on terror, including violate the constitution and statutory law, and neither Congress nor the courts has any authority to prevent it. But if the president exercises the same kind of prosecutorial discretion that all presidents have used in order to institute a more humane immigration policy, that’s an outrageous abuse of executive power. Got that?