Ilya Somin, a libertarian law professor and often a critic of President Obama, agrees completely with his new immigration policy of not deporting those who were brought here as children. And he takes on John Yoo and other partisan hacks for their unjustified objections to it:
This reform strikes me as a major step in the right direction. It allows some 800,000 people to live their lives in peace without the fear of being deported to a life of poverty and oppression in the Third World. It strikes a blow against the grave injustice of current immigration restrictions. All the standard objections to illegal immigration don’t apply here. For example, critics cannot argue that we letting guilty people off the hook here, since these individuals came to the US as children and were not legally responsible for their actions at the time. Similarly, it is unlikely that these people will become burdens on the welfare state, given their educational credentials. In any event, increased immigration tends to reduce political support for welfare spending rather than raise it…
This criticism runs afoul of the reality that the federal government already chooses not to enforce its laws against the vast majority of those who violate them. Current federal criminal law is so expansive that the majority of Americans are probably federal criminals. That includes whole categories of people who get away with violating federal law because the president and the Justice Department believe that going after them isn’t worth the effort, and possibly morally dubious. For example, the feds almost never go after the hundreds of thousands of college students who are guilty of using illegal drugs in their dorms. The last three presidents of the United States all have reason to be grateful for this restraint.
Yoo contends that there is a difference between using “prosecutorial discretion” to “choose priorities and prosecute cases that are the most important” and “refusing to enforce laws because of disagreements over policy.” I don’t think the distinction holds water. Policy considerations are inevitably among the criteria by which presidents and prosecutors “choose priorities” and decide which cases are “the most important.” One reason why the federal government has not launched a crackdown on illegal drug use in college dorms is precisely because they think it would be bad policy, and probably unjust to boot. That, of course, is very similar to Obama’s decision here.
Finally, Yoo also argues that prosecutorial discretion does not allow the president to refuse to enforce an “entire law,” as opposed to merely doing so in specific cases. But Obama has not in fact refused to enforce the entire relevant law requiring deportation of illegal immigrants. He has simply chosen to do so with respect to people who fit certain specified criteria that the vast majority of illegal immigrants do not meet. Even if the president did choose to forego enforcement of an entire law, it’s not clear to me that that is outside the scope of prosecutorial discretion. A president who uses his discretion to “choose priorities” could reasonably conclude that enforcement of federal laws A, B, and C is so much more valuable than enforcement of D that no resources should be devoted to the latter if they could possibly be used for the former.
Yoo’s arguments are bad because he doesn’t really mean them. No one is a bigger advocate of executive power than Yoo and if this was a Republican, he’d be leading the standing ovation. It’s pure partisan nonsense.
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